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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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Brexit breakthrough as trade talks could enter crucial new phase next week

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BREXIT negotiations could go into a crucial “tunnel” phase as early as Monday as a trade deal looks to be within reach.

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Supreme Court sides mostly with Republicans in last-minute voting cases

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WASHINGTON — The U.S. Supreme Court has faced a stream of last-minute appeals over election procedures since the spring, and most of the time it has rejected calls to allow less restrictive voting measures despite the pandemic.

That has generally meant that Republicans prevailed in seeking to block changes that would make it easier to vote, especially in casting mail-in ballots. Of 11 election-related cases filed as emergency appeals since April, Republican interests won in eight.

The court rejected Democratic efforts to lift an age eligibility requirement for mail ballots in Texas, or allow curbside voting and waive the witness requirement for mail ballots in Alabama, or suspend the witness requirement in South Carolina. And it put a hold on lower court orders that would have made it easier to get initiative measures on the ballot in Idaho and Oregon.

“I think a deference to the states is at work here,” said Edward Foley, an expert on election law at Moritz College of law at The Ohio State University.

That could explain why the court reached opposite conclusions on mail-in ballots in Pennsylvania and Wisconsin.

On Oct. 20, the court rebuffed a Republican attempt to block a ruling by the Pennsylvania Supreme Court that allows mail ballots to be counted if they arrive up to three days after election day. By contrast, the court granted a GOP request to block an extension on the mail ballot deadline that was ordered by a federal court in Wisconsin during the primary.

“The Pennsylvania case was coming from the state’s own judiciary rather than a federal court,” Foley said, and the state’s top election official was not supporting the Republicans.

Paul Smith of the Campaign Legal Center in Washington, who frequently argues election cases in federal court, agrees.

“There seems to be some feeling on the Supreme Court that state election officials should be left alone to make their judgment,” he said.

At the same time, he added, that has tended to allow Republicans to prevail, limiting voting opportunities.

In August, the Supreme Court denied an effort by Republicans to block lower court rulings that suspended the witness requirement for mail ballots in Rhode Island, but state officials supported that rule change making voting easier. And in October, the court rejected a Republican appeal seeking to block ranked-choice voting in Maine. There, too, the change was endorsed by the top court in the state, not by a federal judge.

Two more rulings could come at any time ahead of Election Day Nov. 3 from the U.S. Supreme Court, on Republican efforts to block lower court rulings that extend the mail ballot deadline in the presidential battleground states of Wisconsin and North Carolina.

Judge Amy Coney Barret’s confirmation by the full Senate is expected Monday, so she could jump in and vote on any of those pending emergency appeals, as well as others that will undoubtedly come before Election Day.

The vote in the Pennsylvania case was 4-4, one vote short of the number needed to grant a stay of a lower court ruling. Barrett’s arrival removes the possibility of further ties.

A third factor may also be at work in the court’s unwillingness to allow last-minute rule changes.

When the court ruled for Republicans in the South Carolina case, maintaining the signature requirement for mail ballots, Justice Brett Kavanaugh said that the Supreme Court has for years tended to disfavor such changes.

“This court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election,” he wrote.



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Michael Portillo issues damning prediction for US election as Biden races ahead in polls

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MICHAEL PORTILLO said there can be no real winner in the US election, as he hit out at both Joe Biden and Donald Trump ahead of the crunch presidential vote.

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