Connect with us

Politics

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

Published

on

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.



Source link

Politics

Nicola Sturgeon blasted by Lord who says SNP leader 'doesn't want a referendum'

Published

on

NICOLA STURGEON “doesn’t want an independence referendum”, a former Scottish secretary has sensationally claimed.

Source link

Continue Reading

Politics

BBC QT: Michelle Dewberry clashes with Lisa Nandy over Brexit – ‘Who do you represent?’

Published

on

LABOUR’s Lisa Nandy and former Brexit party politician Michelle Dewberry clashed during BBC Question Time on Thursday.

Source link

Continue Reading

Politics

Arizona Senate Republicans sign lease to continue vote audit

Published

on

PHOENIX — Republicans in the Arizona Senate have signed a lease to continue their slow-moving audit of the 2020 election results in Maricopa County through the end of June.

The state Senate and its contractors had rented the Veterans Memorial Coliseum through Friday, when they must vacate the old basketball arena because it is booked for high school graduations next week.

Republicans have hired Cyber Ninjas, a Florida-based cybersecurity firm, to oversee an unprecedented, partisan review of the 2020 election in Arizona’s largest county. They are conducting a hand recount of all 2.1 million ballots and looking into baseless conspiracy theories suggesting there were problems with the election, which have grown popular with supporters of former President Donald Trump.

Under the new lease signed Wednesday, the ballots, computers, tables and related equipment will be stored elsewhere at the state fairgrounds next week. The Senate will regain access to the coliseum on May 23 and have it through the end of June.

The effort has gone far slower than expected, and only a fraction of the ballots have been counted. The audit was to stop Thursday evening, then packing would begin and continue into Friday, said Ken Bennett, a former Republican secretary of state who is serving as the Senate’s liaison to the auditors.

Democratic Secretary of State Katie Hobbs, the state’s top election official, has asked the Senate to detail its plans for keeping ballots secure while they are in storage.

Meanwhile, Senate President Karen Fann sent a letter Wednesday to Jack Sellers, chairman of the Republican-controlled Maricopa County Board of Supervisors, requesting that county officials publicly answer questions at the Senate on Tuesday, but she stopped short of her threat to issue subpoenas.

Fann repeated the Senate’s demand for access to administrative passwords for vote-counting machines and internet routers. County officials say they have turned over all the passwords they have and have refused to give up the routers, saying it would compromise sensitive data, including classified law enforcement information held by the sheriff’s office.

Fann proposed allowing its contractor to view data from the routers at county facilities under supervision of the sheriff’s office. “The Senate has no interest in viewing or taking possession of any information that is unrelated to the administration of the 2020 general election,” she wrote.

The county says the passwords the Senate is seeking are maintained by Dominion Voting Systems Inc., which makes the vote-counting machines and leases them to the county. The company said in a statement Thursday that it cooperates with auditors certified by the U.S. Election Assistance Commission, and did so for two prior audits of 2020 results in Maricopa County, but won’t work with Cyber Ninjas.

“Releasing Dominion’s intellectual property to an unaccredited, biased, and plainly unreliable actor such as Cyber Ninjas would be reckless, causing irreparable damage to the commercial interests of the company and the election security interests of the country,” Dominion’s statement said. “No company should be compelled to participate in such an irresponsible act.”

Fann’s letter also questions the county’s records that document the chain of custody of the ballots and accuses county officials of deleting data.

In a statement, Trump called it “a devastating letter” and said “the Fake News and Lamestream Media is doing everything they can not to cover this major story.”

The Board of Supervisors met in private late Thursday, after which Sellers issued a blistering statement denying that any data was deleted, calling Fann’s allegations “false and ill-informed” and demanding a retraction.

“It’s clearer by the day: the people hired by the Senate are in way over their heads,” Sellers said. “This is not funny; this is dangerous.”

He did not directly respond to Fann’s request for county officials to answer questions at the Senate on Tuesday, but said the county will hold its own public meeting the day before “to refute lies and lay out facts about these issues.”

Source link

Continue Reading

Trending