The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. Cohen’s communications with Trump could fail under (3) and (4), for example, if those communications were used in furtherance of a crime. As the Supreme Court held in Clark v.
Courts have generally protected attorney-client privilege as related to the Fifth Amendment right against self-incrimination.
And as some courts have found, “government interference with the confidential relationship between a defendant and his counsel may implicate Sixth Amendment rights,” citing Clutchett v. Rushen (9th Cir. 1985).
To overcome the presumption in favor of privilege, Mueller might argue that Cohen’s communications with Trump fail Professor John Henry Wigmore’s generally accepted rules necessary to establish a relation-based privilege:
To recap: Special Counsel Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein to investigate allegations of collusion between the Trump campaign and the Russian government in the 2016 presidential election. Because Mueller’s mandate is limited to the allegations of collusion or any other matters that arise directly from the investigation, what he may have uncovered on Cohen may not have related to Russian interference in the election, leaving him unsure of whether he had the authority to pursue it. So Mueller referred the case to the Southern District of New York (SDNY), who then went up the chain to Rosenstein.
The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
One of Cohen's "story's" was that he had to mortgage his home in order to make the payment (s) as there was none of Trump's money used.
To recap: Special Counsel Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein ...
In other words, the SDNY’s investigation of Michael Cohen and Robert Mueller’s investigation of the Trump campaign are two separate investigations. There are questions, however, over whether Mueller can use evidence from the SDNY investigation to bolster his own case. If the SDNY found communications between Cohen and President Trump that proved collusion, for example, could they turn those emails over to Mueller to use for his own case?
If the Trump’s communications with Cohen were tainted by crime or fraud, Mueller could argue that privilege does not apply. The Supreme Court has not proposed any decisive tests for when the “crime-fraud” exception applies, so the D.C. District Court will have to rule on any evidence that Mueller brings on a case-by-case basis.
Federal prosecutors may have executed this search warrant for the premises of an attorney because Cohen may be a subject of an investigation. But, as an attorney, he is also engaged in the practice of law on behalf of clients — clients whose privileged materials are now in the possession of federal agents.
Cohen's office potentially contains documents and communications to all his clients — not just Trump — that are privileged and confidential. The documents must be reviewed for privilege claims, and privileged documents are supposed to be returned to the attorney from whom they were seized.