"Second, the President appears to misunderstand the USAO-SDNY's proposed review protocol when he states that 'as to those communications between Mr. Cohen and his acknowledged clients, the taint team would immediately release all such communications to the Investigative Team that it concludes are 'not privileged,' again without any input from the privilege-holder.' This is wrong. As set forth in our prior brief, for any communications between Cohen and a client, the USAO-SDNY would (1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to privilege; (2) bring the document to a court for an ex parte determination if appropriate; or (3) if the document is of obviously minimal probative value, place the document into the 'Privileged' category as a means of efficiently completing the review."
USAO-SDNY "emphasizes" that, unless an explanation for not extending privilege to a document would "jeopardize a covert aspect of the investigation," Trump & Co. will get a shot at arguing it should be privileged before it goes to prosecutors.
That "unless" really matters. The big reason a document that would otherwise be privileged might not qualify? If it's evidence of ongoing criminal activity. Documents like that could go to the judge first in an ex parte communication, or one-sided communication, without notice to Cohen and Trump.
Cohen and Trump have also been "invited" to let SDNY know if there are any clients, names, or search terms they want to flag as likely connected to attorney-client privilege.
Finally, USAO-SDNY notes, the taint team -- also referred to in the filing as "the Filter Team" -- is reliable not just as an abstract ethical matter, but because no one wants to get sued for screwing up.
USAO-SDNY effectively dismisses the rest of Trump's arguments as metaphorical windmill-tilting. He raises the same objections anyone else might come up with to the use of a Filter Team -- they don't know enough! -- and every one of them has already been offered and resolved. In short, Filter Teams are an established means of protecting attorney-client privilege, and Trump has not distinguished his case in any relevant way from the cases that establish that precedent.
Although it's not likely to reassure Trump, the government also promises that in the unlikely event the Filter Team does fail to hold back something privileged, investigators are bound to record their exposure to that document, send it back to the Filter Team, and report the incident.
"[T]he risk of inadvertent production of a potentially privileged document to the Investigative Team is particularly remote here, where -- on top of its other rigorous procedures previously outlined for the Court -- the Filter Team will review every document twice before it is released to the Investigative Team."
USAO-SDNY saves most obvious arguments for last: Letting Trump and Cohen have the first shot at reviewing the documents is putting the fox in charge of the hen house.
"Third, the President's proposal would place the responsibility for making an initial review of the material into the hands of a party with an incentive to make overbroad claims of privilege."
In fact, notes the USAO, Trump's admitted he'd try to argue for pretty much everything to be privileged.
"We consider each and every communication by, between, or amongst Mr. Cohen and the Trump Organization and each of its officers, directors, and employees, to be subject to and protected by the attorney-client privilege and/or the work-product privilege."
It's also ridiculous to claim that the USAO's prior brief somehow proved that office could not ensure a fair review. That amounts to saying: because you think I've done something wrong, you can't have anything to do with finding out if I did something wrong. That's not how the criminal justice system works.
The other problem with leaning heavily on attorney-client privilege, of course, is that USAO-SDNY has been careful to emphasize their focus on Cohen's business dealings. Besides, one thing surveillance revealed is that Cohen's doing "little to no legal work," just business dealings.
"Our prior brief explained that the investigation relates in large part to conduct by Cohen in his personal business and financial dealings, which have nothing to do with any legal practice he may have."
Trump claims that the Filter Team detracts from "the appearance of fairness and justice." It's because Trump is president, not despite it, that the use of a Filter Team is critical, retorts USAO-SDNY. Such impartial teams are the method our legal system uses to deal with the need to balance public and private interests in situations like this one, and no one's above the law.
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