Tuesday, April 10, 2018
U.S. Attorneys’ Manual has six specific safeguards to ensure that the Department of Justice doesn't violate attorney client privilage in cases where an attorney is the subject of an investigation. It's interesting reading. In addition to a heightened chain of review they include:
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.My first reaction upon hearing that the FBI raided Michael Cohen's office was that whatever they have on him must be pretty big. Now I'm not so sure this is a trail that leads past Cohen. This looks like a straight up case of criminal conduct by Trump's lawyer-- bank fraud, probably. He's in a box, since he can't flip on his client.
- 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).
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