Question about breaking attorney-client privilege.

[pnwmom]

I understand that some FBI lawyers are combing through the Cohen files to find the documents they have been authorized to look for. And I know that when they find ordinary legal advice or research, they have to set that aside, on the grounds of attorney-client privilege -- and not let the prosecutors see it.

But what if they are looking for bank records related to Stormy, and find evidence of unrelated fraudulent or criminal activity involving Cohen, or involving Cohen with Trump? What if, for example, they found records showing Cohen involved in criminal activities with the Russians on Trump's behalf? Do they have to exclude that, too, because they are limited only to the specific things they were searching for? Or can they pass it on to the prosecutors as evidence of a crime?

[Gothmog]

1. The DOJ has a whole chapter in the attorney manual on this

The procedure is that a separate team of lawyers who will not work on the prosecution or trial of Cohen will be reviewing the materials. If an item is clearly covered by the attorney client privilege and it is clear that the fraud exception does not apply, the team will retain that item and keep it confidential. The team will turn over to the prosecution team the materials that are not clearly covered by the attorney client privilege. If the fraud exception is being used, then there are procedures used to vet the release of these materials.

The attorney client privilege does not apply to bank records normally and if they discover other fraudulent acts, then the team need to go up the chain of command and clear the release of such material

I will look for the link to the manual

[pnwmom]

2. Thanks, Gothmog!

[Gothmog]

3. I learned a new legal term "taint team"

I looked for the DOJ manual but got sidetracked with this article https://www.nbcnews.com/politics/donald-trump/trump-cohen-attorney-client-privilege-goes-only-so-far-n864206

Of course, this raises a thorny issue: How do the agents and prosecutors review the documents for privilege status, if the entire point of privilege is that it's not supposed to be seen by people outside the lawyer's office, particularly members of law enforcement?

The U.S. Attorney's manual proposes a solution to that conundrum: A "taint team." Also called a "privilege team," this is a group, consisting of agents and lawyers not involved in the underlying investigation, brought in to review the privileged documents.

If this sounds like a strange fix, some courts agree, and have expressly disapproved of the government's use of taint teams to review documents, including the federal court in the same district where the search of Cohen's office occurred.

Some courts have even held that where the government uses a taint team, the government bears the burden to rebut the presumption that tainted material was improperly provided to the prosecution. Other courts have suggested that it would be preferable for the privilege review to be done by magistrate judge, and not a privilege team comprised of DOJ agents and lawyers

The term privilege team is better but I will not be able to get the term taint team out of my head

[Docreed2003]

7. Lmao...thank you for the legal insight!

But that term is hilariously epic....lmao, but I'm a 13 yr old kid in a man's body sometimes!

[Gothmog]

8. At the Democratic National Convention I learned the term -"Whipping infrastructure"

The Clinton campaign had a great whipping infrastructure. I was getting texts from my whip as to what to expect. For example, I learned about the plan to boo Congressman John Lewis about 15 minutes before this stunt occurred. I was shocked but the warning was accurate.

The term "taint team" may beat "whipping infrastructure."

[Docreed2003]

9. Interesting

In googling "whipping infrastructure", I found an older thread of yours describing the "whipping" of delegates for roll call votes at the DNC, the fact that had to happen at all is upsetting, but are you thinking the powers that be in this investigation had things so well organized that they were able to move this up the ladder without raising red flags? Maybe I'm totally missing the analogy.

[Gothmog]

10. This is due to my sense of humor-there is no analogy other than I found both terms funny

The analogy is that the fact that I like the term "whipping infrastructure" is a sign that I have a strange sense of humor. This is a term that amused me at the time because I have perhaps inapporpriate sense of humor. The term "taint team" also lends itself to some bad jokes.

[Gothmog]

11. CNN on Taint Teams

Link to tweet

[Docreed2003]

14. Gotcha now...lol

[Gothmog]

19. My kids give me grief at times for my sense of humor

[Lee-Lee]

4. Some of that will depend on just what the scope of the warrant is

For example, if they have a warrant only for financial records and they go looking through files that are clearly not financial records then anything they find would possibly be inadmissible.

A good way to understand it- let’s say I am looking for a stolen pistol. I have probable cause to believe that a stolen pistol is inside a residence. I get a warrant to look for that pistol.

Anything I find that would have been found consistent with acting within the scope of the warrant I could also charge somebody for. So let’s say I open a drawer and see child pornography in open view as I open the drawer. I can charge the person with possession of child pornography.

However if I open the drawer and there is an envelope inside and I take the contents of the envelope out and see child pornography I cannot charge him for that and that evidence could not be used in court. Why? Because my warrant was for a pistol, and the pistol could not be inside that envelope, so looking inside that envelope was outside the scope of the warrant.

Now if you could get it approved a warrant seeking the “pistol, ammunition or magazines for the pistol, and all written or electronic communications related to possession of the pistol” that makes it broader and let’s me look pretty much anywhere. But a judge usually won’t do that just for a pistol. Maybe if the case involves theft and trafficking in a stolen pistol and is broader than just a search for a specific pistol.

So it really is a huge “maybe”, all depeding on what the scope of the warrant is actually for. For example if it only relates to the financial transaction with Daniels than opening any files older than the period where that happened would probably outside the scope, opening any files clearly not related to thy case would be outside the scope, etc.

[pnwmom]

5. Thank you, Lee-Lee! I understand at least how complicated it is now.

No wonder they haven't been talking about that on TV!

[Gothmog]

6. I found the DOJ manual

Here is part of the manual https://www.justice.gov/usam/usam-9-13000-obtaining-evidence#9-13.420

9-13.420 - Searches of Premises of Subject Attorneys
NOTE: For purposes of this policy only, "subject" includes an attorney who is a "suspect, subject or target," or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime. This policy also applies to searches of business organizations where such searches involve materials in the possession of individuals serving in the capacity of legal advisor to the organization. Search warrants for "documentary materials" held by an attorney who is a "disinterested third party" (that is, any attorney who is not a subject) are governed by 28 C.F.R. 59.4 and USAM 9-19.221 et seq. See also 42 U.S.C. Section 2000aa-11(a)(3).

There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Therefore, the following guidelines should be followed with respect to such searches:]

Here is the part dealing with privilege teams or taint teams

Review Procedures. The following review procedures should be discussed prior to approval of any warrant, consistent with the practice in your district, the circumstances of the investigation and the volume of materials seized.
Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.
Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.
Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm's operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.
Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).

[pnwmom]

12. Thanks, Gothmog! n/t

[LAS14]

13. Thanks to you and gothmog and Lee-lee. Good thread!!!

[canetoad]

15. There's another aspect to Trump/Cohen relationship

Like most DUers, I thought Cohen was Trump's private attorney. This article says that may not be the case and I'm wondering what this means exactly for attorney-client privilege.

https://www.newyorker.com/current/michael-cohen-raid

>snip

• Cohen is often described as Trump’s personal lawyer. He is a lawyer, and he did work for Trump personally, but not in a traditional lawyerly capacity. What he did for Trump and the Trump Organization is bring in business deals. It’s more accurate to say that Cohen was one of Trump’s deal guys. Maybe the most important deal guy, after Trump’s children.

• Cohen was directly involved in the Trump Organization’s pursuit of international deals in the years leading up to Trump’s Presidential campaign. During this period, the Trump Organization did business with corrupt politicians, sanctions violators, and money launderers. A key question, which carries significant legal ramifications, is how much the company knew about these partners’ records and reputations. Michael Cohen can answer this question.

[csziggy]

16. On one of the show they said that much of what Cohen does is NOT as an attorney

As in the first point you quoted, he brought deals to Trump and that is really not something an attorney does. So that part of his relationship with Trump is not covered by the attorney client relationship. Add in that anything that they did that was part of a crime is also not covered.

[canetoad]

17. Kind of narrows it down

To legit legal business only being protected. Not that there would be much of that.

[csziggy]

18. Yep - no wonder Dolt45 is freaking out!

[pnwmom]

20. I bet DT thought that Cohen's law degree meant that anything he did for DT,

including various criminal activities, could be hidden behind attorney-client privilege.

[canetoad]

21. Exactly.

Since I read that New Yorker piece, I'm noticing that every article (and there are many) about Cohen calls his Trump's personal attorney. You'd have to wonder if Trump and Cohen themselves encouraged this misconception because it was expedient.

[Gothmog]

22. Former US Attorney Preet Bharara: "The likelihood that Michael Cohen is going to be charged is high

Link to tweet