Fogbow

There's been discussion online concerning Trump's right to a special master to conduct a preliminary review of the documents seized from his golf club or otherwise to challenge the search.

I took a look at the case-initiating document (a letter from the United States Attorney’s office to the district judge) requesting that the court appoint a special master to review electronic devices seized from Rudy Giuliani and Victoria Toensing. Docket No. 1, In the Matter of Search Warrants Executed on April 28, 2021, 1:21-mc-00425 (S.D.N.Y. Apr. 29, 2021). https://storage.courtlistener.com/recap ... .1.0_5.pdf

The government's letter argued, with citation to caselaw, that a filter team is “a ‘common procedure’ … and considered protective of the attorney-client privilege.” The letter goes on to state that appointment of a special master is restricted to “exceptional circumstances,” which “may exist where the search involves the files of a criminal defense attorney with cases adverse to the United States Attorney’s Office, ‘thus raising Sixth Amendment concerns that would not otherwise be present … or where the attorney represents the President of the United States such that any search may implicate not only the attorney-client privilege but the executive privilege [referring to the search of Michael Cohen’s office].” Letter at 2 (citations omitted).

The letter was written in an adversarial proceeding, and thus is not necessarily a balanced or comprehensive treatment of the applicable law. However, the various U.S. Attorneys’ offices have a generally good reputation for not filing deceitful papers. Furthermore, the district court’s subsequent order granting the government's request appeared to agree with the government's statement of applicable law. See Docket No. 20 at 3 ("The use of a filter team is a common procedure in this District and has been deemed adequate in numerous cases to protect attorney-client communications"). https://storage.courtlistener.com/recap ... 20.0_1.pdf

The court also rejected Giuliani and Toensing's request that the devices be immediately returned to their counsel, for them to determine in the first instance which materials would be turned over to the government.

As the court held,

in effect, they ask the Court to require the Government to proceed by subpoena rather than by search warrant. Guiliani’s and Toensing’s position lacks legal support. The search warrants at issue here were based on judicial findings of probable cause — supported by detailed affidavits — to believe that evidence of violations of specified federal offenses would be found at the locations to be searched. There is no legal requirement for the Government to proceed by subpoena, nor is there any basis for the subject of an investigation to require it to do so.

Docket No. 20 at 2-3 (cleaned up).

Based on this very limited research, it appears that Trump is probably not entitled to review by a special master, because he is neither a criminal defense lawyer with federal clients nor currently the President. In addition, he's probably waived any right to such a review by not filing a motion immediately.

The court's decision also had some interesting discussion about unsealing probable cause affidavits while an investigation is active and no indictments have been handed down. Giuliani had "request[ed] that the Court unseal the affidavits submitted in support of the 2019 and 2021 warrants so he can challenge their legality." The court gave this request short shrift.

[H]e is not entitled to a preview of the Government’s evidence in an ongoing investigation before he has been charged with a crime.

Giuliani cites no precedent — and the Court is aware of no authority — for the proposition that the Fourth Amendment (or any other constitutional or statutory provision) gives a person who has not been charged a right to review a search warrant affidavit during an ongoing investigation. See, e.g., Matter of Eye Care Physicians of Am.,100 F.3d 514, 517(7th Cir. 1996).

Assuming that the search warrant affidavits are “judicial documents” to which the First Amendment and common law right of access applies, the Court finds that the presumption of access is plainly outweighed by the need to protect a grand jury investigation that is ongoing. “Among other things, if matters relating to grand jury proceedings became public, prospective witnesses may be deterred from testifying, those who do testify may be less likely to do so truthfully, targets of investigations may flee, and persons who are the subject of an ultimately meritless investigation may face public embarrassment.” United States v. Haller, 837 F.2d 84, 87-88 (2d Cir. 1988) (citation omitted).

If Giuliani is charged with a crime, of course, he will be entitled to production of the search warrant affidavits as part of discovery pursuant to Federal Rule of Criminal Procedure 16. He will also be able to file motions challenging the warrants under Rule12. But such disclosure is premature at the present stage.

Docket No. 20 at 4-5.

In light of the preemptory rejection of this request for unsealing a probable cause affidavit, it's a little curious to me that Judge Reinhart so quickly determined that release of a redacted version of the golf club affidavit was required. However, the government has already conceded that the search was unusual and the subject of extraordinary public interest, and it's hard to disagree. As for Trump's ability to mount a general attack on the legality of the search before he's been indicted, good luck with that.

Thank you!

When I read "case law" in your information, my first thought was "Fuck case law per Alito, Kavanaugh, Thomas, Gorsuch, Barrett, and Roberts".

Kash Patel says he has been designated as Trump’s official rep to the Nat Archives for months but they won’t let him see classified docs.

"Kash Patel says something dumb," would have been fewer characters, as it isn't NARA's fault or problem that he lacks the necessary clearance. And being a designee doesn't automagically give him clearance.

The "issue" is whether outrage still sufficient for the grift, or must they ramp up to vague threats of future action. Perhaps even throwing some ineffectual papers, to suggest action is achievement.

Given that election season (i.e., post Labor Day) is soon here, delay is a reasonable goal here.

I read the warrant. It wasn't that broad, IMO.

But I'm not a mark.

Tiredretiredlawyer wrote: ↑Sat Aug 20, 2022 12:56 pm Thank you!

When I read "case law" in your information, my first thought was "Fuck case law per Alito, Kavanaugh, Thomas, Gorsuch, Barrett, and Roberts".

And I loved how this one got all indignant bemoaning the court ignoring a century of case law when taking rights away from Native Americans, when he just voted to overturn a half century of case law to take away rights for half the damn populace of the country....

I other words Gorsuch:

pipistrelle wrote: ↑Sat Aug 20, 2022 1:31 pm I read the warrant. It wasn't that broad, IMO.

But I'm not a mark.

Yeah, an argument that occasionally recycles is that "all government papers from 2017 to 2021" isn't sufficiently particular, or essentially is a general warrant.

Courts have repeatedly said that warrant terms should be read in conjunction, so "all papers" and "stuff in boxes" means "all papers in boxes," unless the warrant specifically allows for a disjunctive search, i.e., "all papers" OR "stuff in boxes." And doing so means the warrant isn't a general one, and is sufficiently specific.

Too also: there's the plain view exception, that is, if there are obvious criminal indicia in plain view during a search, they too can be taken, even without a warrant, provided the warrant is otherwise valid.

If a "major motion" is filed, I expect it will argue the warrant wasn't sufficiently particular, as that's a common argument in suppression motions. And if that argument is made, I expect the government to argue (among other defenses) for a plain-view exception.

Those paper marked TOP SECRET? My new easy-to-clean-off-walls ketchup formula.

Thanks for that information, Chancery.

On the Motion, Ali Akbar is claiming credit like this is some big, never-before-seen idea that he had to fight SO HARD for.

bob wrote: ↑Sat Aug 20, 2022 9:19 am If he put his McDonald's coupons in the same box as the nuke codes, let him have his coupons.

Even the expired ones?

We don’t have a Schadenfreude Thread, more’s the pity, so ima plop this here.



He has other good threads of insider info.

ETA The photos he chose are particularly apropos.

bob wrote: ↑Sat Aug 20, 2022 1:17 pm "Kash Patel says something dumb," would have been fewer characters [...]

Also non-dispositive due to lack of specificity.

Ben-Prime wrote: ↑Sat Aug 20, 2022 2:08 pm

bob wrote: ↑Sat Aug 20, 2022 9:19 am If he put his McDonald's coupons in the same box as the nuke codes, let him have his coupons.

Even the expired ones?

Expired coupons, yes; expired nuke codes, no.

I'm still trying to decide if he genuinely believes the government documents are his, or is just saying that because he knows stupid people will lap it up.

bob wrote: ↑Sat Aug 20, 2022 2:12 pm I'm still trying to decide if he genuinely believes the government documents are his, or is just saying that because he knows stupid people will lap it up.

I believe that he truly thinks that anything addressed to President Trump or signed by President Trump belongs to him individually. After all, HIS name is on it. That makes it HIS.

It is NOT a coincidence that the name for the plastic card that contains the Gold (nuclear launch) Codes, which change daily, is nicknamed The....


Just sayin'.

bob wrote: ↑Sat Aug 20, 2022 2:12 pm

Ben-Prime wrote: ↑Sat Aug 20, 2022 2:08 pm

bob wrote: ↑Sat Aug 20, 2022 9:19 am If he put his McDonald's coupons in the same box as the nuke codes, let him have his coupons.

Even the expired ones?

Expired coupons, yes; expired nuke codes, no.

I'm still trying to decide if he genuinely believes the government documents are his, or is just saying that because he knows stupid people will lap it up.

So you're trying to decide who is more stupid: Trump or his followers?

That is going to be a hard one.

Michael Cohen is on CNN right now with Jim Acosta.

orlylicious wrote: ↑Sat Aug 20, 2022 1:58 pm Thanks for that information, Chancery.

On the Motion, Ali Akbar is claiming credit like this is some big, never-before-seen idea that he had to fight SO HARD for.


Akbar Motion.JPG



Akbar Motion 2.JPG

Now, the FBI search was a break-in? I think I missed that one.

orlylicious wrote: ↑Sat Aug 20, 2022 1:58 pm Thanks for that information, Chancery.

You are welcome.

Note that I forgot to include my usual qualification: IANACrL.

Spiro Agnew’s Ghost
@SpiroAgnewGhost
So a friend of mine who gets very good info told me hours before we found out publicly that there were high level top secret docs seized at Mar-A-Lago that one of the set of documents is so incredibly sensitive and top secret that they are at “codeword” level, which is insane.

The reply

Has anyone noticed that Mar-a-Lago went from being Trump's private, exclusive club for wealthy members only to being his "home"?

pipistrelle wrote: ↑Sat Aug 20, 2022 5:25 pm Has anyone noticed that Mar-a-Lago went from being Trump's private, exclusive club for wealthy members only to being his "home"?

Oh, a lot of us noticed that, especially since that was a violation of the agreement allowing Merde-Lardo to be built*.

*not sure if built is the right word here

W. Kevin Vicklund wrote: ↑Sat Aug 20, 2022 6:23 pm

pipistrelle wrote: ↑Sat Aug 20, 2022 5:25 pm Has anyone noticed that Mar-a-Lago went from being Trump's private, exclusive club for wealthy members only to being his "home"?

Oh, a lot of us noticed that, especially since that was a violation of the agreement allowing Merde-Lardo to be built*.

*not sure if built is the right word here

I'm sure we have but the media should point out how the messaging has changed to emphasize how the poor man's home has been violated.

Also, how would personal papers and effects get mixed in with top secret government docs in the absence of extreme negligence of duty and responsibility?

bob wrote: ↑Sat Aug 20, 2022 2:12 pm

Ben-Prime wrote: ↑Sat Aug 20, 2022 2:08 pm

bob wrote: ↑Sat Aug 20, 2022 9:19 am If he put his McDonald's coupons in the same box as the nuke codes, let him have his coupons.

Even the expired ones?

Expired coupons, yes; expired nuke codes, no.

I'm still trying to decide if he genuinely believes the government documents are his, or is just saying that because he knows stupid people will lap it up.

Didn't his request for a Special Master mention attorney-client privilege? I think that he believes that any communication between him (as President) and the Attorney General falls under that rubric. He believes that HE was the AG's client. In reality, The United States is the AG's client, and United States does not equate to The President.

If he mixed communications with Giulianni, for example, with the other TS documents, those might be subject to Atty-Client privilege but that would be proof of incredibly sloppy document handling. While mishandling his own documents isn't a crime, I'm pretty sure that mishandling TS documents is a crime.