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Tuesday, April 17, 2018

Foley on appointing a special master in the Cohen case

At the Election Law Blog, Ned Foley questions the potential appointment of a special master to review and determine privilege of the materials seized from Michael Cohen. He concludes:

Thus, it seems to me that there should be an extremely strong presumption in favor of using conventional procedures to handle the Cohen case. If those procedures would be good enough if the client involved were a major business figure (like Mark Zuckerberg), or a major sports or entertainment figure (like O.J. Simpson), then they should be good enough if the client is a business and entertainment figure who later becomes president (like Donald Trump).

I would add two things in support of Ned's conclusion. First, one reason this is a "politically charged case" is that the President has been relentlessly attacking the Department of Justice, including over the seizure of Cohen's documents.There is an unfortunate irony, and perverse incentive, that the President's attacks on the prosecution politically charge the case so as to require special procedures.

Second, DOJ uses filter teams, not a special master, when reviewing materials seized from congressional offices for possible Speech-or-Debate-protected materials. Such cases are at least as politically charged as this one, with the added bonus that they implicate the Separation of Powers when the executive investigates the legislature.

Posted by Howard Wasserman on April 17, 2018 at 02:41 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

hereby , one may read , the request of Joanna C. Hendon , the attorney of Trump , to judge Wood , requesting so finally, I quote :

" For the foregoing reasons, the President respectfully requests that the Court issue an order :

1. Enjoining the government from using a taint team to conduct an initial privilege review;

2. Directing the government to provide Mr. Cohen and his counsel with a copy of the materials seized from Mr. Cohen by the government on April 9, 2018;

3. Directing Mr. Cohen and his counsel, after the government provides Mr. Cohen and his counsel with a copy of the seized materials, to identify to the President all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel;

4. Directing the President and his counsel, after they review the materials provided by Mr. Cohen, to identify for the government's taint team all materials over which the President asserts privilege;

5. Authorizing the government's taint team to raise any objections to the President's assertions of privilege with the Court; and

6. Prohibiting the government's taint team from providing the Investigation Team with (a) any materials over which the President asserts a privilege without objection from the taint team, and (b) any materials that the Court rules are privileged over the taint team's objection.

Here :

https://www.justsecurity.org/wp-content/uploads/2018/04/Trump-Letter.pdf

Posted by: El roam | Apr 17, 2018 6:43:42 PM

Just correcting it :

That foley doesn't evoke the executive privilege as justification or not the issue , but rather , I quote :

" As far as I am aware , however , there is no assertion of executive privilege in the specific context of the Cohen documents . Nor can I see how executive privilege could apply in that context ….. "

So , it may be attributed to him mistakenly , but not to him , if at all .

Thanks

Posted by: El roam | Apr 17, 2018 4:53:09 PM

Interesting indeed . He has a point , but one can further suggest , that such master , is indeed a reasonable necessity :

First , one should not forget , from the very beginning , as Trump stepped in to the oval office , the political mess has started . This is not an ordinary situation .Such occurrences , are more heavily associated with political bias ( See the confrontations with Comey for example , at the start of everything ) .

Second , when dealing with privilege of client - attorney , one can attack , and directly so , every possible dirty secret for implicating an acting president let alone . So , if any immunity is evoked for the appropriate function of the president ( in civil cases for example ) then surly ,relevant for such privilege , that can be used as a political tool , for harassing and throwing over an acting president . As such , this is a far greater sensitive issue with political strategic implications . So , a master would remove maybe , public suspicions of such .

Third , to draw analogy with ordinary people , is bit baseless , how many lawyers , of how many presidents , had been raided , for seizure of such sensitive documents ??

Finally , he is evoking the issue of executive privilege , but has nothing to do with it . It is not associated with direct function and duties of the president . It is an external action , of federal agents. That wasn't his call or policy !!

One can read here , some funny quotes from the hearings :

https://goo.gl/JvpcLF

Thanks

Posted by: El roam | Apr 17, 2018 4:36:17 PM

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