Before FBI seized privileged Trump memos, DOJ filter teams already tainted by legal controversy

U.S. Supreme Court considering ruling on legality of taint teams, while other courts wince, feds admit to a major blunder and some lawyers see a "fox in the privilege henhouse."

Updated: August 29, 2022 - 11:00pm

The Justice Department's admission Monday it improperly collected attorney-client privileged documents during a court-ordered search of Donald Trump's Florida estate was quickly followed by assurances it was no big deal because the department has a process to segregate privileged material.

But that process — known as filter teams or "taint" teams — has itself been tainted by a string of recent legal controversies over the seizure of attorney-client privilege protected materials in other cases.

Distrust among defense lawyers — including the firm that once employed Hunter Biden — about the honor system that federal law enforcement claims to use to protect privileged evidence has led to a pending writ of certiorari asking the U.S. Supreme Court to rule on the legality of such teams.

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.

And the Securities and Exchange Commission — which often investigates financial crimes alongside the FBI — recently admitted to significant breaches in two cases where its computer systems mistakenly allowed criminal investigators to have access to potentially privileged documents from its administrative regulatory side. The agency blamed the mistakes on a "control deficiency."

"We deeply regret that the Commission's systems lacked sufficient safeguards surrounding access to Adjudication memoranda," the agency said in a rare statement of apology. "We have great faith in the professionalism of all of our staff and will work to ensure that, going forward, we better protect the separation of adjudicatory work-product within our system for administrative adjudications, including by enhancing our systems for controlling access to Adjudication memoranda. We take this lapse in controls very seriously and are working hard to make sure nothing like it happens again."  

The apology, while applauded, only further heightened defense lawyers' concerns that the government's regard for protecting privileged materials is waning or non-existent.

"Although the recently-revealed SEC mishap appears to have been limited to its own materials, the inappropriate access to privileged materials is an ongoing problem that exists across prosecutorial and enforcement agencies and institutions," attorney Robert J. Anelo wrote in a recent Forbes article.

The problem with taint teams, he stated, is that the reviewing team lacks independence. "This team comprises the prosecutors' colleagues and is conducted within the agency that is responsible for prosecuting the matter," Anelo wrote.

Prominent defense attorney Matthew J. Schwartz, the managing partner at the same Boies Schiller Flexner law firm where Hunter Biden worked for years, wrote a rebuke of DOJ's use of taint teams in an article in March involving the case of an investor on trial in New York.

The use of taint teams "clearly raises a host of risks and concerns," Schwartz wrote, adding that he did not think DOJ was open to the sort of "sorely needed" reforms that would truly protect privilege. "We are not particularly hopeful that the DOJ will relinquish its unilateral role in making privilege determinations," he said.

Trump's legal team has asked a federal judge in Florida to remove the FBI taint teams and appoint a special master to oversee the review of evidence taken from his Mar-a-Lago estate during the Aug. 8 raid. That request took on new significance when DOJ disclosed in court that the FBI grabbed some attorney-client privileged memos as well as the former president's expired and current passports in a clear overcollection of evidence.

DOJ is opposing Trump's request for the special master, arguing its own filter team has already reviewed the entire evidence and identified the privileged documents prosecutors should not be allowed to use in their investigation.

But that argument is flying into the headwinds of growing court concerns about the way such teams conduct themselves and whether they are even a legal solution to protecting defendants' and suspects' privileges and rights.

In Mississippi, for example, a federal judge concluded in June that the government's protocols for taint teams were so lax that they were likely to cause "irreparable harm" to a defendant whose evidence was raided. That ruling has reverberated in legal circles, leading some to suggest the DOJ simply wants a "fox in the privilege henhouse."

At least three federal appeals courts in the last three years have similarly expressed concern about DOJ's taint teams. The most direct ruling came in 2019 by the 4th U.S. Circuit Court of Appeals in a Maryland case in which federal prosecutors got a magistrate judge to approve a raid on a law firm. The appellate judges concluded the use of a DOJ taint team to determine which privileges to protect for the law firm "inappropriately assigned judicial functions to the executive branch."

In 2020, in response to the appeals court rebukes, the Justice Department announced some reforms, creating a Special Matters Unit to supervise taint teams and create an additional watchdog for a process defense lawyers had begun howling about. The changes did not improve confidence much in the courts.

In 2021, the 5th U.S. Circuit Court of Appeals rebuked federal prosecutors in a new case in Texas for their conduct with a taint team, ultimately concluding the government appeared to have "no intent to respect [the target's] interest in the privacy of its privileged materials as the investigation unfolds."

In Ohio, defense lawyers were able to force changes to the taint team procedures over concerns about protecting privilege in a case that ultimately reached the 11th U.S. Circuit Court of Appeals. The appeals court only approved the taint team approach after significant changes were made.

Katie Sullivan, a former deputy assistant attorney general in the Trump Justice Department, told Just the News on Monday that the courts would benefit from the U.S. Supreme Court weighing in on the legality of filter teams and the proper procedures for them.

"I think it would provide a lot of guidance. ... This is a fairly new, fairly recent development of a procedure and protocol," Sullivan said. "I think it just goes to show how great or how big our government has grown, how big the FBI has grown."

Tom Fitton, the president of Judicial Watch, which sued to force the release of the search warrant affidavit in the Trump case, said the FBI's recent misconduct in several cases makes any system that relies on an honor system suspect to millions of Americans.

"Whether it be taint teams or other misconduct, the FBI and the Justice Department have poor records of telling anybody anything about what they've done wrong," he said. "And usually it only comes out after they're caught red-handed in something the accountability for which they can't hide."