Many TV pundits are telling viewers not to worry about the government’s intrusion into possible lawyer-client privileged communications between President Trump and his lawyer, Michael Cohen.
The pundits say that since prosecutors won’t get to see or use any privileged material taken when FBI agents raided and searched Cohen’s law office, home and hotel room Monday the intrusion will not be a problem. This is because prosecutors and FBI agents create firewalls and taint teams to preclude privileged information from being used against the client in a criminal case.
But this analysis completely misses the point and ignores the distinction between the Fifth Amendment to the Constitution on the one hand, and the Fourth and Sixth Amendments on the other.
The Fifth Amendment is an exclusionary rule. By its terms, it prevents material obtained in violation of the privilege of self-incrimination from being used to incriminate a defendant – that is, to convict him or her of a crime.
But the Fourth and Sixth Amendments provide far broader protections: they prohibit government officials from in any way intruding on the privacy of lawyer-client confidential rights of citizens.
In other words, if the government improperly seizes private or privileged material, the violation has already occurred, even if the government never uses the material from the person from whom it was seized.
Not surprisingly, therefore, firewalls and taint teams were developed in the context of the Fifth Amendment, not the Fourth or Sixth Amendments. Remember who comprises the firewall and taint teams: other FBI agents, prosecutors and government officials, who have no right under the Fourth and Sixth Amendments even to see private or confidential materials, regardless of whether it is ever used against a defendant.
The very fact that this material is seen or read by a government official constitutes a core violation. It would be the same if the government surreptitiously recorded a confession of a penitent to a priest, or a description of symptoms by a patient to a doctor, or a discussion between a husband and wife of their sex life.
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