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Tuesday, August 30, 2022

Trump FBI DOJ document situation --- Hoping to get this correctly described - The NA (National Archives) discovered classified material in an earlier set of boxes Trump and his lawyers turned over. From there, time and a possible obstruction of justice stonewall were a concern, national security matters making time of the essence.

The FBI-DOJ use of "taint teams" to independently review a trove of seized documents to determine if privileged attorney-client materials are included, and to hold these things apart from evidence turned over to investigative agents as evidence or information which might lead to evidence is being questioned.

Prior to the Aug 2022 Mar a Lago search and seizure by federal agents fifteen boxes of materials were turned over to NA which discovered classified material within the boxes. This was viewed as an exigent concern, DOJ was informed and NA wanted guidance on whether it should allow FBI to investigate the boxes. 

The DOJ informed Biden and his people that FP (former President) asserted executive privilege over box contents, not attorney client privilege, but that letting agents paw through the boxes would possible quell President-advisor candor in the future if wrongful disclosure practices happened or might happen.

Biden and his people indicated they asserted no privilege over the material on their own acount, and that DOJ and NA should work things out, with a particular DOJ official to be involved.

FP lawyers were not asserting exigent need to review the box contents based on a privilege assertion, being loose as to time or time pressures.

This NA letter available online now to FP lawyer Corcoran resulted. It speaks for itself. This was before the Mar a Lago search.

After the Mar a Lago search a taint team, as had been described in the DOJ affidavit of probable cause was given access to the seized boxes and folders, and has completed its review and isolated some privileged material.

John Solomon was designated by Trump as an agent to deal with NA while also being a journalist. He has written online, in chrono order, Aug 23, "Biden White House facilitated DOJ's criminal probe against Trump, scuttled privilege claims: memos; AND  Aug 29, "Before FBI seized privileged Trump memos, DOJ filter teams already tainted by legal controversy; which online reports each speaks for itself questioning Biden's power to waive or affect a privilege asserted by FP after FP had been fired by the electorate and questioning taint team reliance (with links), etc. 

Where this will lead is unclear. FP has moved for appointment of a special master to do a privilege review; Corcoran filing. This is separate from the search warrant proceedings, and a different jurist has jurisdiction. 

It appears as if the FBI - DOJ has been careful with its conduct as merited by the nature of the situation, including public and media attention.

How and on what basis FP counsel might seek to suppress evidence should things result in a criminal indictment and trial are anticipated but premature questions at this point. Judicial ruling on any suppression effort is even more remote.

Rolling Stone's Aug 23 report,"Trump Tells His Lawyers: Get ‘My’ Top Secret Documents Back," should also assist reader understanding of the current status of things without any seized or returned document having yet been made public beyond disclosure to the public of search warrant papers, redacted or otherwise.

I.e., no underlying evidentiary document has been publicly disclosed.

The DOJ has an ongoing duty to provide a defendant or potential defendant notice of exculpatory material it holds, likely meaning some copies of things in the total document trove would have to be expeditiously turned over to Corcoran or other Trump lawyer(s). Timeliness of such exculpatory disclosure can be a litigated issue.

MOREOVER: With the Immaculate Declassification assertion likely to fail, clearance status of individuals on litigation teams might arise as an issue needing resolution; and neither executive privilege nor attorney client privilege exempts advisors or attorneys from accessorial criminal liability arising from conduct already or yet to happen, if such conduct has or will occur. Coconspirator status is the most common accessorial liability that arises in white collar criminal contexts.

Solomon's reporting has noted this taint team challenging petition for certiorari to the Supreme Court, as pending decision to accept or decline. Solomon wrote:

The filter/taint team procedure "needlessly and harmfully exposes assertedly privileged communications to the government's eyes," lawyers for defendant Mordechai Korf and others argue in asking the nation's nine justices to consider the case. "It undermines essential protections for the adversary system. And it jeopardizes the confidentiality needed for the applicable privileges to serve their vital purposes."

While the justices weigh whether to take the Korf case, at least three other federals appeals courts have already raised concerns about the teams in other cases.