Michael Cohen raid and attorney-client privilege: What is a 'taint team'?

The FBI raid on the office and hot...

Posted: Apr 11, 2018 9:02 AM
Updated: Apr 11, 2018 9:02 AM

The FBI raid on the office and hotel room of Michael Cohen, a longtime personal attorney to Trump, resulted in the seizure of "protected attorney-client communications," according to a lawyer for Cohen.

"Attorney-client privilege is dead!" a furious President Donald Trump tweeted Tuesday morning, referring to the legal privilege that protects most communications between a client and his or her attorney, allowing it to be kept confidential.

So what happens to communications between Cohen and his clients swept up in Monday's raid? That's where a "taint team" -- or, as it is sometimes called, a "privilege team" -- comes in.

A taint team made up of lawyers who are not involved in the underlying investigation will almost certainly be put in place to review the materials obtained in the raid before those materials are handed over to the prosecutorial team.

The US Attorneys' manual says a "privilege team" exists "to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material."

In other words, a taint team is intended to act as a protective buffer between an individual subject to a seizure and prosecutors when material is seized that may be privileged.

"The taint team lawyers review the documents and remove anything that is covered by the attorney client privilege," CNN chief legal analyst Jeffrey Toobin wrote in an email. "They pass the non-attorney client material to the investigators, who are not 'tainted' by contact with the privileged material."

Chris Christie, the Republican former governor of New Jersey and onetime head of the Trump transition team, pushed back against the President's assertion that "attorney-client privilege is dead" in an interview on ABC's "Good Morning America" by explaining how the taint team will work.

"Attorney-client privilege is not dead, because of the way the Justice Department is going to approach this," Christie said. "There's going to be a taint team. They call it a taint team because you don't want to taint the prosecutors who are actually investigating it by seeing potentially privileged information that they have no right to see."

Christie went on to say the team would "examine this, they're going to separate it into stuff that's privileged and stuff that isn't. And then of the stuff that's privileged, is there any evidence of a crime or fraud?"

CNN reported Monday that the search warrant used to raid Cohen's office was broad, according to one source familiar. Stephen Ryan, Cohen's lawyer, said in a statement that the US Attorney's office for the Southern District of New York executed "a series of search warrants."

"When you are dealing with documents as evidence, you don't know if a particular document pertains to your case until you read it. Taint teams serve as that initial scrub, reviewing seized information to determine its applicability," Josh Campbell, a CNN law enforcement analyst who's a former FBI agent, wrote in an email.

"Ultimately, an independent judge will also determine what information is admissible in any future court proceedings," Campbell added.

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