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.”
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.
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.
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.
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