"Firewalls" and "Taint Teams" Do Not Protect Fourth and Sixth Amendment Rights

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RxCowboy

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#1
"Firewalls" and "Taint Teams" Do Not Protect Fourth and Sixth Amendment Rights
by Alan M. Dershowitz
April 11, 2018 at 5:00 am

https://www.gatestoneinstitute.org/12154/donald-trump-michael-cohen
  • The Fourth and Sixth Amendments prohibit government officials from in any way intruding on the privacy of lawyer/client confidential rights of citizens.
  • The very fact that this material is seen or read by a government official constitutes a core violation. It would be the same if the government surreptitiously recorded a confession of a penitent to a priest, or a description of symptoms by a patient to a doctor, or a discussion of their sex life between a husband and wife.
  • The recourses for intrusions on the Fourth and Sixth Amendments are multifold: the victim of the intrusion can sue for damages; he or she can exclude it from use by the government in criminal or civil cases; or the victim can demand the material back. But none of these remedies undo the harm to privacy and confidentiality done to the citizen by the government's intrusion into his private and confidential affairs.
Many TV pundits are telling viewers not to worry about the government's intrusion into possible lawyer/client privileged communications between President Trump and his lawyer, since prosecutors will not get to see or use any privileged material. This is because prosecutors and FBI agents create firewalls and taint teams to preclude privileged information from being used against the client in a criminal case. But that analysis completely misses the point and ignores the distinction between the Fifth Amendment on the one hand, and the Fourth and Sixth Amendments on the other.

The Fifth Amendment is an exclusionary rule. By its terms, it prevents material obtained in violation of the privilege of self-incrimination from being used to incriminate a defendant – that is to convict him of a crime. But the Fourth and Sixth Amendments provide far broader protections: they prohibit government officials from in any way intruding on the privacy of lawyer/client confidential rights of citizens. In other words, if the government improperly seizes private or privileged material, the violation has already occurred, even if the government never uses the material from the person from whom it was seized.

Not surprisingly, therefore, firewalls and taint teams were developed in the context of the Fifth Amendment, not the Fourth or Sixth Amendments. Remember who comprises the firewall and taint teams: other FBI agents, prosecutors and government officials who have no right under the Fourth and Sixth Amendments, even to see private or confidential materials, regardless of whether it is ever used against a defendant. The very fact that this material is seen or read by a government official constitutes a core violation. It would be the same if the government surreptitiously recorded a confession of a penitent to a priest, or a description of symptoms by a patient to a doctor, or a discussion of their sex life between a husband and wife. The government simply has no right to this material, whether it ever uses it against the penitent or the patient or the spouse in a criminal case.

So, let's not dismiss the potential violation of the rights of Michael Cohen and his client, if it were to turn out that included among the materials seized by the government in the raid were private or confidential information or documents.

The recourses for intrusions on the Fourth and Sixth Amendments are multifold: the victim of the intrusion can sue for damages; he or she can exclude it from use by the government in criminal or civil cases; or the victim can demand the material back. But none of these remedies undo the harm to privacy and confidentiality done to the citizen by the government's intrusion into his private and confidential affairs.

An equally important harm is to important relationships that are protected by the law: between lawyer and client, priest and penitent, doctor and patient, husband and wife, etc. If an ordinary citizen, seeing that even the president's confidential communications with his lawyer can be seized and perused, he or she will be far less willing to engage in such communications. As a society, we value such communications; that is why our laws protect them and that is why it should be extremely difficult for the government to intrude upon them, except as a last recourse in extremely important cases.

From what we know, this case does not meet those stringent standards. Much of the material sought by the warrant could probably be obtained through other sources, such as bank, tax and other records that are subject to subpoena. Moreover, the alleged crimes at issue – highly technical violations of banking and election laws – would not seem to warrant the extreme measure of a highly publicized search and seizure of records that may well include some that are subject to the lawyer/client privilege.

Someday soon, the government is going to have to justify its decision to conduct this raid. I challenge any reader who is not concerned about this raid to honestly answer the following question: If the raid had been conducted on Hillary Clinton's lawyer's office and home, would you be as unconcerned? The truth now!

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "Trumped Up, How Criminalization of Political Differences Endangers Democracy."
 

RxCowboy

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#4
From WSJ:

The Michael Cohen Raid
The Mueller probe now stretches to include the Stormy Daniels payment.

By The Editorial Board
April 10, 2018 6:46 p.m. ET

The FBI raid Monday on lawyer Michael Cohen raises the political and legal stakes in the vast prosecutorial investigation into Donald J. Trump. The probe into allegations of Trump campaign collusion with Russia has careened into a dive into the dumpster of a payoff to a porn actress to keep quiet about an alleged affair with Mr. Trump. This is the way of special prosecutors, and Washington now seems headed toward a fight-to-the-end between the President and his enemies.

The press is reporting that Mr. Cohen is being investigated for possible bank fraud and campaign-finance violations in connection to his $130,000 payment to Stormy Daniels (née Stephanie Clifford ) in October 2016. Mr. Cohen said he made the payment as a personal favor for his friend and client, Mr. Trump.

But if the payment was intended to silence the actress to help Mr. Trump win the election, then it could be considered a campaign contribution that exceeded the donation limit in 2016. As Bradley Smith notes nearby, proving such a crime would be difficult, and former Democratic presidential candidate John Edwards was acquitted in a similar case. But these days in politics anything can be criminalized.

The raid is especially notable, and troubling, for piercing the attorney-client relationship between Mr. Cohen and Mr. Trump. That is a serious step legally, and it typically requires significant evidence to justify. It would also require the approval at senior levels of the Justice Department. The warrant came at the request of the U.S. Attorney for the Southern District of New York in Manhattan on a referral from special counsel Robert Mueller, who could use whatever information the raid generates.

Mr. Cohen’s lawyer denounced the raid as “completely inappropriate and unnecessary” and a needless “seizure of protected attorney-client communications.” Mr. Trump reacted with fury and called the raid a “disgrace” and “an attack on what we all stand for.”

These are self-serving defenses, but we suspect more than a few Americans are wondering about such an extraordinary intrusion into a target’s right to counsel. Mr. Cohen knows as much about Mr. Trump’s personal and financial affairs as anyone, and prosecutors could use an indictment to coerce his cooperation against the President. Contrast this treatment with the deference accorded Cheryl Mills, who was allowed to attend the FBI’s interview with Hillary Clinton as her counsel even though Ms. Mills was part of the personal email saga at the State Department.

All of this is a long way from “treason” and the allegation that Mr. Trump is a front man for Vladimir Putin. Could Mr. Trump really be indicted or impeached for the stupidity of trying to cover up an affair from 2006? The hilarious thought is that Mr. Trump or his lawyer believed they could protect Mr. Trump’s reputation.

By the time of Mr. Cohen’s payment to Ms. Daniels in October 2016, every American knew Mr. Trump had an unsavory history with women. Ms. Daniels could have shouted about her affair—which Mr. Trump still denies—for hours on CNN and most voters would have said that sounds like Donald Trump but so what? He was running against Hillary Clinton, who covered for her husband’s affairs for decades.

In his Monday rage at the raid, Mr. Trump again raised the prospect of firing Mr. Mueller or other Justice officials. Never underestimate the President’s capacity to hurt himself. But firing Mr. Mueller wouldn't stop the investigation, though it would cost him Republican support and probably guarantee his impeachment if Democrats take the House in November.

The smart advice—which he won’t take—is to keep quiet about Mr. Mueller and build political capital by trying to succeed as President. Get a stronger legal team, on criminal and constitutional law for the fight ahead, and let faster economic growth improve the public mood. That saved Bill Clinton.


Even as Mr. Mueller expands his probe, the Justice Department Inspector General will soon report on how the FBI and Justice handled the investigation into Mrs. Clinton. If there is no more evidence than is now public about collusion with Russia, many voters will conclude the exercise was mainly partisan. Ditto if prosecutor John Huber finds evidence that Obama officials were colluding with some in the FBI to defeat Mr. Trump. Most Americans will judge the President based on the overall evidence.

Mr. Trump can’t control Mr. Mueller, but he can control himself. That may be the only way he can save his Presidency.

Appeared in the April 11, 2018, print edition.
 

AshlandFlash

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#6
Someone needs to point out that Mueller found stuff that he deemed had nothing to do with HIS investigation, so he turned it over to other authorities. Mueller didn't raid the lawyer's office.
 

Deere Poke

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#7
Someone needs to point out that Mueller found stuff that he deemed had nothing to do with HIS investigation, so he turned it over to other authorities. Mueller didn't raid the lawyer's office.
Do you think maybe some of Muellers people could be on the taint team. What a great way to learn things even if you can't use it in court. Shows you someone else you can subpoena with your rubber stamp grand jury.
 

Okieleaks

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#8
This is beautiful, Republicans clinging to a lifelong Democrat lawyers OPINION. The guy is angling for the job of defending Trump. It’s highly entertaining watch you all suck on his teet, carry on.
 

CowboyJD

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#10
“But the Fourth and Sixth Amendments provide far broader protections: they prohibit government officials from in any way intruding on the privacy of lawyer/client confidential rights of citizens.”

If there is probable cause established that the lawyer and client conspired together to violate the law and a warrant is obtained there is no 4th or 6th Amendment violation.

There is no lawyer/client confidentiality between co-conspirators...even when one of them is the lawyer. It’s called the crime fraud exception.

This fact has resulted in the successful prosecution of mob lawyers that became “bag men” for their clients, lawyers that suborned perjury with the knowledge and approval of their client, have given bribes on behalf of their client, assisted in the illegal extortion of someone by their client and a host of other crimes.
 
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