In order to get the OK to raid Cohen's office, prosecutors would have had to get approval from high up — in this case from Deputy Attorney General Rod Rosenstein — and demonstrate to a federal magistrate both probable cause and the need for a warrant instead of a subpoena (such as a concern that Cohen might destroy evidence), Litman explained.
In addition, the probable cause would have to relate to a crime centered on Cohen, not Trump or someone else. "You can’t use it as end run around to get to the client," Litman said.
There will also be a "taint team" to examine everything before it is handed over to prosecutors to make sure that those conducting the case never see any material that might be "tainted" by attorney-client privilege.
The only way the prosecution would be permitted to examine any material that might otherwise fall under the attorney-client umbrella is if it is determined to be part of a crime jointly undertaken by the attorney and the client. But for the privilege to be nullified, Litman said the taint team would have to get the approval of the court to present the material to the prosecution.
In order to fall under attorney-client protection, the documents just have to be related to Cohen dispensing legal advice or gathering information in order to give that advice, Litman said. But merely having an attorney involved does not guarantee the protection.
"It can’t just be that somebody with the bar degree is in the general vicinity," Litman said.
Based on his experience with cases involving issues of attorney-client privilege, Litman said is likely that the prosecution never sees 80% or more of the documents.