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Trump court filing in Michael Cohen case: Objects to DOJ/FBI “taint team” deciding what is attorney-client privileged

Trump court filing in Michael Cohen case: Objects to DOJ/FBI “taint team” deciding what is attorney-client privileged

“no court in this Circuit has ever forced a privilege-holder, over his objection, to rely on government lawyers to protect his attorney-client privilege as to materials that were seized from his own lawyer’s office.”

http://www.cnn.com/interactive/2017/01/politics/trump-inauguration-gigapixel/

On Monday, April 16, 2018, the court in the Southern District of New York will continue its hearing on the motion by Donald Trump’s personal attorney Michael Cohen for return of records seized from his law office and home. In the alternative, Cohen seeks severe restrictions on the government’s ability to review the records, even if the government follows its procedures to have a so-called “taint team” do so.

For the background and court pleadings, please see the prior post, Trump attorney Michael Cohen goes to Court to get back seized records.

As previously mentioned Trump was granted “intervenor” status as a person with interest in the case.

Today Trump’s attorney’s filed a Letter Motion (pdf.)(full embed at bottom of post) with the court.

In the motion, Trump argues that the FBI’s so-called “taint team” should not be permitted any review of the records seized from Cohen:

We write on behalf of President Donald J. Trump, an Intervenor in this action. The President objects to the government’s proposal to use a “taint team” of prosecutors from the very Office that is investigating this matter to conduct the initial privilege review of documents seized from the President’s personal attorney, Michael D. Cohen. The cases upon which the government relies do not authorize this extraordinary measure, and, to our knowledge, no court in this Circuit has ever forced a privilege-holder, over his objection, to rely on government lawyers to protect his attorney-client privilege as to materials that were seized from his own lawyer’s office.

For the reasons detailed below, the Court should enter an order enjoining the government from proceeding with any review of the seized materials, and directing the government to provide a copy of the seized materials to Mr. Cohen so that our firm and the President may review for privilege those seized documents that relate to him.

Trump wants his own team to do the privilege review:

The question now before the Court is, who should perform the initial review of the seized materials to assess whether they are, or are not, subject to a valid claim of privilege: a taint team consisting of colleagues of the prosecutors assigned to this investigation, or the President, who is the holder of the privilege and, as such, has a unique interest in ensuring that every privileged item is fully protected from improper disclosure? The question answers itself. As in instances when the government relies on a subpoena duces tecum to obtain evidence, the privilege-holder should be permitted to review the materials for privilege in the first instance.

Trump’s lawyers reject even having a court-appointed Special Master do the initial review:

Details of the government’s proposal in this case highlight the risk of using a taint team. For example, the government states “the Filter Team will review and release communications to the Investigative Team [i.e., prosecutors and agents assigned to the investigation] between Cohen and persons with whom Cohen undisputedly does not have an attorney-client relationship.” (Gov’t Opp. at 5.) Under this proposal, the taint team would make the final decision – conclusively and without the participation of Mr. Cohen, the President, or anyone else – as to whom Mr. Cohen “undisputedly” does not share an attorney-client relationship with. (Id.) Further, as to those communications between Mr. Cohen and his acknowledged clients, the taint team would immediately release all such communications to the Investigative Team that it concludes are “not privileged,” again without any input from the privilege-holder. (Id. at 6.) These critical decisions concerning a sacred privilege are not for a team of prosecutors to make. 4

….The prosecutors have, in their public filing, already pre-judged the matter of privilege, repeatedly urging that few privileged documents are likely to be found among the seized materials. (See, e.g., Gov’t Opp. at 1 (asserting that the U.S. Attorney’s Office and FBI “have reason to believe” that Cohen has “a low volume of potentially privileged communications”); id. at 4 (predicting that “the overwhelming majority of evidence seized during the searches will not be privileged material”); id. at 13 (asserting that “Cohen is in fact performing little to no legal work”).) These statements by the government indicate a disinclination to find privilege, a bias that virtually guarantees that there will not be a fair privilege review of the seized materials.

4 For the same reasons, a special master will not adequately protect the President’s privilege. Even a presumptively neutral third person cannot provide that which is indispensable here – intimate familiarity with the underlying facts and zealous advocacy on behalf of the privilege-holder.

Trump also points to the political aspects of the case:

There is also the matter of the staggering amount of attention trained on this investigation, Mr. Cohen, and the President. Under even the best of circumstances, the appearance of fairness and justice is compromised by the government’s use of its own personnel to review potentially privileged material:

[T]he implementation of a Chinese Wall, especially in the context of a criminal prosecution, is highly questionable, and should be discouraged. The appearance of Justice must be served, as well as the interests of Justice. It is a great leap of faith to expect that members of the general public would believe any such Chinese wall would be impenetrable; this notwithstanding our own trust in the honor of an AUSA.

In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994). These concerns are magnified here. In the highly politicized, even fevered, atmosphere that envelops this matter, it is simply unreasonable to expect that a team of prosecutors, even if not directly involved in the investigation of Mr. Cohen, could perform a privilege review in the manner necessary to safeguard the important interests of the President, as the holder of the privilege.

Trump seeks the following court relief:

For the foregoing reasons, the President respectfully requests that the Court issue an order:

1. Enjoining the government from using a taint team to conduct an initial privilege review;
2. Directing the government to provide Mr. Cohen and his counsel with a copy of the materials seized from Mr. Cohen by the government on April 9, 2018;
3. Directing Mr. Cohen and his counsel, after the government provides Mr. Cohen and his counsel with a copy of the seized materials, to identify to the President all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel;
4. Directing the President and his counsel, after they review the materials provided by Mr. Cohen, to identify for the government’s taint team all materials over which the President asserts privilege;
5. Authorizing the government’s taint team to raise any objections to the President’s assertions of privilege with the Court; and
6. Prohibiting the government’s taint team from providing the Investigation Team with (a) any materials over which the President asserts a privilege without objection from the taint team, and (b) any materials that the Court rules are privileged over the taint team’s objection.

I think Trump is right here. The records are now secure. There is no reason why the government, having seized law office files, should deprive the privilege holder of the right, subject to judicial review, to assert privilege. The records could be kept in a secure place, copies given to Trump’s team, which then could produce a privilege log as to which records should not be turned over to the investigators. A judge could then rule.

This would, of course, slow down the investigation. But that’s a result of the seizure of materials from a law office. As Trump points out in the Letter Motion, this is the procedure that would have followed if the government had issued a grand jury subpoena. Given the publicity and tendency for everything to leak, Trump is right to be concerned that even a “taint team” would not be tainted.

UPDATE 4-16-2018:

DOJ has responded (pdf.) to Trump’s Letter Motion. (full embed at bottom of this post):

The President’s letter (the “Letter”) makes
substantially the same arguments already made by Cohen, and does not—and cannot—justify the relief he seeks: namely, to block the government from carrying out a judicially-approved search, and for the President and his counsel to themselves act as a privilege screen for all materials lawfully seized by the government from Cohen’s premises that “relate [to the President] in any way.” (Letter at 8) (emphasis added). Granting such relief would mark a serious departure from the accepted, normal practices of this District and erect an unprecedented and unwarranted obstacle to the government’s ability to investigate attorneys for their own conduct, in this case or any other. For the reasons that follow, and those set forth in the USAO-SDNY’s memorandum in opposition to Cohen’s motion (Dkt. 1 (“USAO Br.”)), the Court should deny the motion. That is, the Court should permit the USAO-SDNY to review the evidence lawfully seized pursuant to judicially authorized search warrants, consistent with a rigorous Filter Team protocol that is common practice in this District.

—————————–

Cohen v. USA – Trump Letter Motion for Injunction Against Gov’t Review of Seized Records 4-15-2018 by Legal Insurrection on Scribd

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Michael Cohen v. USA – DOJ Response to Trump Letter for Injunction Against Gov’t Review of Seized Records 4… by Legal Insurrection on Scribd

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Comments

Subotai Bahadur | April 15, 2018 at 9:55 pm

Schoedigger’s Legal System: Statutes are there on the books. Maybe. If the law book is opened in reference to a member of the Bipartisan Governing Party or their rent seekers, the pages are blank and there is no restriction on their conduct.

If it is opened by someone not a member of the Nomenklatura, the pages are filled with bans, compulsions, and penalties with no rights involved. Also known as “Quantum Jurisprudence”.

“2. Directing the government to provide Mr. Cohen and his counsel with a copy of the materials seized from Mr. Cohen by the government on April 9, 2018;”

Always baffled me why the courts let the prosecution ‘seize’ materials, then sit on them like a hen on a nest of eggs instead of providing copies back to the defendant. Okay, I know *why* they do that, just that the process is inherently unfair.

In this case, I have no doubt that *more* than one copy of this material will be made and distributed out to various swampy entities first before anything gets back to Cohen.

    Bucky Barkingham in reply to georgfelis. | April 16, 2018 at 7:38 am

    The gummint’s secure storage of the seized documents will be leakier than the Titanic. The “ace reporters” at NYT are probably already poring over them looking for their next big exposé.

First it’s peeing hookers
Then it’s stormy danials
Now it’s a ‘taint’ team….

TMI… 🙂

The swamp reminds me of MRSA bacteria …. awfully hard to kill, awfully hard to get rid of. The swamp is determined to get Trump at any cost.

    Remember: it’s us they’re after, not Trump.

      Whitewall in reply to TheFineReport.com. | April 16, 2018 at 6:54 am

      It is us they despise and want to grind down. Trump is the means. The Deep State Swamp is every bit our enemy as Soviet Communism, National Socialism, Islamism or modern “progressivism”. Right now, the DS runs the institutions. The war on America is the war for America. Our Founders warned us to be vigilant.

        I wasn’t an early fan of Trump. However, I would have crawled across a parking lot of broken glass to vote against Hillary. Trump has surprised me, although not always pleasrd me with his antics. That being said, I know a bully when I see one and I detest bullies. Mueller and his late-night Gestapo tactics in light of his lack of success of pinning anything on Trump are nothing but theatre tactics of a bully.

I’m really, REALLY shocked the Feds didn’t let Cohen hire his own lawyers to sift through the information and then “decide” what is relevant and what isn’t.

I mean, that particular template’s already been used, amIright?

    MarkS in reply to KasichLaw. | April 16, 2018 at 9:25 am

    Didn’t Hillary get to sift through her emails to decide which were relevant ?

      hrhdhd in reply to MarkS. | April 16, 2018 at 9:44 am

      Well, sort of. Her lawyer, who had no security clearance, sifted through them.

      DaveGinOly in reply to MarkS. | April 16, 2018 at 6:34 pm

      I thought of Hillary too, but there are huge differences.

      First, Hillary’s server messages weren’t of the “attorney/client” nature, and therefore not “privileged.” Second, the emails sought were those she generated in the course of her duties as SoS, and therefore the government’s property, not Hillary’s. Third, Hillary was responsible for commingling private messaging with her (government) work messaging by routing both through, and storing both on, the same device. If there was a problem exposing personal messages to investigators, she was responsible for causing it. (I worked for a major police organization and all cadets were put on notice – do not use your private devices for official communications. Doing so will subject those devices to searches in response to public records requests and other investigations.)

johnny dollar | April 16, 2018 at 12:13 am

In the state court system with which I am familiar, a search warrant executed on an attorney’s office is accompanied by a “special master”, who is an attorney on a list provided by the State Bar, and who is not in the employ of any police or prosecutorial agency.
His/her job is to screen out the seizure of any documents which pertain to matters not involved in the warrant, in order to protect the attorney client relationship of people not involved in the alleged criminal activity.
The process of determining which documents are relevant to the warrant is made by the special master, not by an employee of the police agency (in this case, the FBI).
I understand that attorneys cannot be given blanket immunity from having search warrants executed on their offices, since it is certainly possible that an attorney would be involved in criminal behavior. But it is outrageous to allow the FBI to rummage through the entirety of an attorney’s files to find what they are allegedly looking for.

    Why would a federal agency’s seizure be subject to a special master provided by the State Bar? It’s not under state law.

      starride in reply to JBourque. | April 16, 2018 at 7:08 am

      it sounds like you may have a reading comprehension problem here.

      The poster did not say that the feds should follow state law. He was simply stating a state course of procedure and action that he was familiar with.

        johnny dollar in reply to starride. | April 16, 2018 at 9:38 am

        Exactly.

        There’s a reason I asked instead of wallow in my ignorance. If there was a single normal thing about this incident there would be no need, or point, to asking at all.

        But thank you for the clarification nonetheless. Now I know it is an apples and oranges thing for sure.

Left narratives:
2016 – Russia did it! Trump is toast!
2018 – Maybe there was a porn star involved.
2020 – Parking tickets! Must be dozens of them!
2022 – Failed to put the lid down! Impeach!
2024 – As the curtain descends on the scandal-plagued Trump administration and Pence takes office…

I think it obvious why they seized the documents as they did: they aren’t going to wait for a judge’s ruling to view or copy documents. The only “secure place” to prevent this is the custody of a neutral third party.

I would find more concerning the DoJ’s contention that Cohen really isn’t performing legal work so he really doesn’t have privilege, so they don’t really require permission to go through the whole thing. I’m also mindful of the “proposal” line – if there’s a taint team, why wouldn’t it have gone to work within minutes of the documents arriving at the appropriate facility? They have decided that there is a presumption that nothing is privileged, and if anything actually should be, the taint team will figure it out. The only reason this court case exists is because Cohen brought it (and Trump’s legal team joined on Trump’s behalf).

At this point any ‘taint team’ is just bullshit theatre.

They’re already leaking documents. I guarantee regardless of what ruling the judge makes Mueller already has copies of everything and is going to have his Clinton toadies go over everything anyway.

And if a judge rules in Trump’s favor? Why of course he’ll just lie and claim anything he found had been found before the judge told them to stop.

Mueller is a dirty actor who is only interested in bringing down Trump to protect the dirty deeds done by Comey, Rosenstein, the FBI, and Obama’s regime to aid Hillary.

This is all part of the theater.

Funny how Hillary’s lawyer’s office never got subjected to this type of thing, nor Bubba’s, when Whitewater investigations were going on.

This is a target being subject to the search for a crime, any crime, on behalf of tainted characters.

A Billionaire steps down from his Ivory palace to serve his country and actually make changes and this is what he gets from his government. Unprecedented intrusion. I mean look, he is having to ask the government to constrain itself (The court also being part of government) and if I were him, I’d fight it all the way. While I don’t like some of the alleged baggage he carries, the left would make a mountain out of a molehill for anyone who dared to beat HRC

    MarkS in reply to stl. | April 16, 2018 at 9:30 am

    Trump’s major mistake was not firing everyone from the previous administration he legally could on day one and assigning the rest to something like counting pencils in the basement of DOJ!

Humphrey's Executor | April 16, 2018 at 8:47 am

“We’re so right on this issue we don’t even need to go to the trouble of filing a brief. A letter will suffice.”

And they’re that right.

Clearly, the cat is out of the bag and everything seized is in the hands of the prosecutors who sought out the documents, regardless of the outcome of this legal theater, if not already strategically disseminated. I would seriously doubt that the agents seizing these records will be able to establish a convincing chain-of-custody documentation that the records remain untouched and uncopied.

The purpose of this suit then must be to provide grounds for prosecuting the prosecutors should Trump escape this “kill shot” and is able and willing to continue to fight back.

Or to avoid setting a legal precedent for the future, if government under law survives the current administration.

For goodness sake, Trump is the President. He has every right to order the US Marshals to seize and take custody of these documents.

    No he doesn’t. That is ridiculous. Trump can’t order Marshals to steal documents belonging to Michael Cohen without due process of law. It’s unconstitutional.

      If someone wants to nitpick “steal”, then substitute with seize, obtain, commandeer, anything that suits your fancy… the point is, Marshals can’t just go and take things that belong to the citizenry like bandits. Even if Cohen would be pleased by the outcome, that doesn’t give the President, the Marshals, and so on and so forth, the right to engage in such lawless behavior. I thought this was so basic it didn’t need saying, but I guess I was wrong?

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