Recall Special Counselor Robert Mueller’s raid on President Donald Trump’s personal lawyer Michael Cohen’s offices and seizure of Cohen’s records, especially targeting communications between Cohen, the lawyer, and Trump, the client.
Cohen went in to Federal court Friday to try to get the subpoena under which the raid was conducted revoked and the confiscated materials returned. Some discussion surrounding the events centers on the alleged ability of special monitors—a “taint team”—doing the sorting so as to isolate the privileged communications from the rest of the material sought under the warrant. Furthermore, this team would, supposedly, conduct its sort before Mueller’s team has gone into the material they seized.
I’ll elide the blatant conflict of interest here centered on the taint team’s members being, at bottom, colleagues of the those who ran the raid and of Mueller: they’re FBI agents and DoJ lawyers.
I’m interested in a larger question that’s not being addressed. Say Cohen wins his case and the subpoena is quashed and the seized materials returned to him in toto. On what basis do we conclude that Mueller’s team hasn’t already copied all of those seized materials and separated the copies from the originals? That by itself, incidentally, would be a good practice with legitimately confiscated materials; reviewing the copies would ensure against accidentally damaging the originals and thereby destroying their legal provenance (as well as their utility for their rightful owners). On what basis do we conclude that, on Cohen’s victory, those copies would be returned, also? On what basis do we conclude that Mueller’s team isn’t already reading and evaluating those copies of the seized materials?