Earlier this week, the FBI raided Michael Cohen’s office, residence, and hotel. Cohen is President Trump’s personal attorney. The raid, which came after a referral from Special Counsel Robert Mueller’s office, has generated a lot of noise in the legal community. That noise centers around attorney-client privilege. Controversy exists around how the FBI often handles seized items in these types of cases. That debate relates to something called a “taint team.”
The attorney-client privilege is “a long-standing doctrine of U.S. law that allows the subject of a lawsuit or criminal case to shield their communications with legal counsel,” according to an article in Reuters. Those communications, however, must relate to legal advice. The privilege “does not protect a person’s discussion of business, personal, or financial matters with a lawyer if they are unrelated to legal representation.”
Often, the U.S. government will employ what’s referred to as a “taint team.”
According to FMGLaw, a taint team consists of “government attorneys who are segregated from FBI agents and prosecutors involved in the investigation.” Further, these teams are “charged with sifting through seized files and determining what prosecutors can and can’t use.”
Taint teams are designed to shield the attorney-client privilege and keep it intact in the case of something like the FBI raid of Cohen’s office. However, these teams are not without controversy, as evidenced by the claim from famed attorney Alan Dershowitz. Dershowitz, as he explains in an opinion piece in the Jerusalem Post, believes that the theory behind taint teams is wrong because it “ignores the distinction between the U.S. Constitution’s Fifth Amendment on the one hand, and the Fourth and Sixth Amendments on the other.” He claims that the government employees who make up these taint teams “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.”
If this claim by Dershowitz turns out to be true, especially if it’s later asserted in a case brought by either Cohen or President Trump, it could spell real trouble for much of the evidence seized in the raid.
But, not everyone agrees with Dershowitz’s conclusions. In fact, courts have been divided on the issue. Taint teams have been used, and allowed, in some cases. In United States v. Mower, the use of a taint team was determined to “not constitute an intrusion warranting complete suppression of all evidence seized.” However, the court did go on to clarify that this is in cases where “the seizure of documents was not initially challenged.” This could be a significant distinction, where it’s entirely possible that the Cohen raid and seizure will be challenged.
What ultimately happens with the items seized from Cohen remains to be seen. But, with the taint team issue out there, it’s sure to be a hotly argued item even before any evidence is presented.