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For Trump and Cohen, attorney-client privilege goes only so far

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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. Among those clients is the sitting president of the United States.

According to Department of Justice policy, an application for a search warrant of a lawyer’s office such as this is so serious that it usually requires approval of either the U.S. Attorney for the district, or the Assistant Attorney General.

Because of the potential damage to legitimate attorney-client relationships caused by these mass seizures of records, U.S. Attorneys are trained to explore alternatives to these warrants when evidence is sought from a practicing attorney. One alternative would be a subpoena, which allows the attorney to search for and produce the documents. The fact that the FBI opted for a raid without notice suggests prosecutors believed less-intrusive measures might result in the destruction of evidence.

Now that the documents are in the FBI’s possession, the U.S. Attorney’s manual mandates the use of procedures that ensure privileged materials are not improperly viewed, seized or retained. We know that as an attorney, Cohen had at least one active client: Trump called Cohen his lawyer on Air Force One just days ago.

Of course, the privilege between an attorney like Cohen and his clients may be lost if the “crime-fraud exception” applies. The purpose of this exception is to assure that the secrecy between lawyer and client does not extend to obtaining advice in furtherance of contemplated or ongoing criminal or fraudulent conduct.

It is not enough for the government to just show that these privileged communications between Cohen and a client might provide evidence of a crime. Rather, the communication itself must have been in furtherance of, and intended to facilitate the crime, in order to strip these communications of the protections of privilege.

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.

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.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.



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France bulks up military with mega cash injection as budget soars to €41BN – up €1.7BN

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EMMANUEL MACRON announced a huge increase in spending for the French Armed Forces, in his latest bid to win over voters ahead of next year’s Presidential elections.

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Biden seeks to bring his party together amid infighting over agenda

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WASHINGTON — The true fate of President Biden’s legislative agenda was always going to be clear when Sen. Joe Manchin, D-W.V. huddled with progressives to tell them what he’s specifically for on reconciliation, and when Biden rolled up his sleeves to tell his party how it should proceed.

Today, it appears we might get an answer to that second question — or at least the beginning of the answer.

President Biden is expected to meet today with House and Senate Democrats to discuss a way forward on the infrastructure/reconciliation legislative packages, especially with the infrastructure bill set for a House vote on Monday, per NBC News.

“As of Tuesday evening, the White House had not settled on the final timing and invite list for the gatherings but a source familiar with the planning told NBC News that House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer are expected to attend a 2 p.m. ET meeting at the White House,” NBC’s Teaganne Finn, Sahil Kapur, Geoff Bennett and Haley Talbot write.

The standoff here: “Progressive lawmakers have said they won’t back the Senate-passed infrastructure bill, a top priority for the Democratic leadership, unless the larger $3.5 trillion reconciliation package passes first. Moderates, meanwhile, said they won’t support the reconciliation measure unless the bipartisan infrastructure bill passes on Monday as scheduled.”

The real endgame to this stalemate has always been Manchin finally showing his cards about what he can support on reconciliation, given that Democrats need his vote (as well as Sen Kyrsten Sinema’s) in the current 50-50 Senate.

But the other key component was Biden leading his party and trying to find a way out.

Can Biden really afford to see his infrastructure deal go down to defeat next week?

Progressive House Dems are threatening to vote against the bipartisan infrastructure deal that the Senate passed last month — as a way to keep both it and the reconciliation package (which is still TBD) tied together legislatively.

But can Biden afford to see the infrastructure bill go down to defeat in the House? Even if the measure gets another vote whenever the reconciliation stalemate gets resolved?

Here’s what Biden said last month when the infrastructure package cleared the Senate by a 69-30 vote, with 19 Republicans joining all 50 Democratic senators:

“Folks, above all, this historic investment in infrastructure is what I believe you, the American people, want — what you’ve been asking for for a long, long time. This bill shows that we can work together.

“I know a lot of people — some sitting in the audience here — didn’t think this could happen. This bill was declared dead more often than — anyway. That bipartisanship was a thing of the past. From the time I announced my candidacy (inaudible) bringing the country together and doing things in a bipartisan way, it was characterized as a relic of an — an earlier age.

“As you may well remember, I never believed that. I still don’t.

“So, I want to thank those senators who worked so hard to bring this agreement together. I know it wasn’t easy.

“For the Republicans who supported this bill, you showed a lot of courage. And I want to personally thank you for that, and I’ve called most of you on the phone to do just that.

“You have — and no doubt, you will –- disagree with me on many issues. But where we can agree, we should. And here, on this bill, we proved that we can still come together to do big things, important things for the American people.”

Bottom line: Will someone who ran for president touting his deal-making ability (including with the opposition), who delivered an inaugural address on achieving unity, and who routinely emphasizes the power of his word in negotiations really allow his party to defeat this bill?

Even if it’s a temporary defeat?

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Data Download: The numbers you need to know today

$30 million: How much the DSCC is investing in a new field program targeting nine states with the hopes of holding onto their slim majority.

500 million: How many more Pfizer Covid vaccine doses America is buying to donate to the world.

42,455,954: The number of confirmed cases of the coronavirus in the United States, per the most recent data from NBC News and health officials. (That’s 125,672 more since yesterday morning.)

682,653: The number of deaths in the United States from the virus so far, per the most recent data from NBC News. (That’s 2,360 more since yesterday morning.)

386,780,816: The number of vaccine doses administered in the U.S., per the CDC. (That’s 542,935 more since yesterday morning.)

54.8 percent: The share of all Americans who are fully vaccinated, per the CDC.

66 percent: The share of all U.S. adults at least 18 years of age who are fully vaccinated, per CDC

ICYMI: What else is happening in the world

U.S. diplomats suffering from the so-called “Havana Syndrome” had a tense meeting with Secretary of State Blinken this month.

The New York Times reports that the Trump campaign wrote a memo in mid-November that acknowledged many of the conspiracy theories spouted by Trump’s allies claiming massive election fraud were false.

Many Americans are having to postpone important medical procedures because hospitals are inundated with Covid patients.

Democrats are criticizing the Biden administration over the treatment of Haitian migrants.

The Washington Post reports that few GOP Senate candidates are backing Trump’s call to depose Senate Minority Leader Mitch McConnell.

The former French Ambassador to the U.S. hammered the Biden administration over its handling of L’affaire Sous-marine.

And this Wednesday night at 7:00 pm ET, Speaker Pelosi, Sens. Bernie Sanders and Elizabeth Warren, and other Democratic lawmakers will join progressive health-care activist Ady Barkan for the online premiere of his documentary “Not Going Quietly.”



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'Get a grip and give me a break!' Boris rages in French as he loses patience with Macron

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BORIS Johnson has lost his temper at Emmanuel Macron over Frances’s reaction to the AUKUS pact between the US, UK, and Australia.

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