continuing

Aaron M. Danzig, at Arnall Golden Gregory:  "A Tainted Practice? Department of Justice Filter Teams Under Review"

When Michael Avenatti won a mistrial in his wire fraud trial in the Central District of California in August 2021, it was one of the tamer headlines about the infamous suspended lawyer. However, the lack of fanfare belies the significance of the legal issue that led U.S. District Judge James Selna to declare the mistrial. Judge Selna found that the government’s “taint team” had failed to hand over evidence in its possession after a seizure of data from Avenatti’s law offices. Although no willful misconduct was found, the failure to turn the reviewed evidence over materially hindered Avenatti’s ability to defend himself against the government’s charges. This case is one of a number of recent actions to consider the proper use of taint teams, representing a pushback on the government’s handling of privileged materials in investigations.

Boies Schiller Flexner: "In the Eye of the Beholder: The DOJ's Overreliance on 'Taint Teams' to Review Privileged Communications"

The “total institutional failure” of the Department of Justice’s handling of privileged material in the ongoing prosecution of former Goldman Sachs banker Roger Ng highlights the serious issues with the use of “filter” or “taint” teams, Sabina Mariella and Matthew L. Schwartz at Boies Schiller Flexner argue.— 

The DOJ uses taint teams to review potentially privileged material and determine what may be shared with the team investigating or prosecuting a case, and what must be withheld as privileged. But the practice, which essentially makes prosecutors the sole arbiter of whether communications are privileged, poses serious risks for both the DOJ and private parties. In the last year alone, the use of filter teams has resulted in at least one mistrial in a high-profile prosecution and substantially impaired the defence in another.

The second link from Taibbi, a moralist and not too bright, but that's not the point. David Boies obviously isn't a moralist.

The angriest legal aid lawyer on twitter (so angry he blocked me) said he'd clerked for Dearie. He positively gushes. 

And then there are the defense attorneys in national security cases. 

Trump is being treated here like every one of my clients. Doesn't matter what authorities he had while president. He no longer is and no longer makes this decision.

If he can't prove declassification, then the docs are classified and Executive Branch determines need to know. https://t.co/pqFfl7QJD4

— Bradley P. Moss (@BradMossEsq) September 20, 2022

I have made that "need to know" argument so many times over decades. I persuaded federal judge of this once. DC Cir reversed.

I wish it were otherwise but Trusty hasn't done his homework. When arguing access to classified info one needs to thread a needle not use sledgehammer. https://t.co/wklMcLjheU

— Mark S. Zaid (@MarkSZaidEsq) September 20, 2022

Taibbi is happy to be feted by a columnist for WaPo who thinks he Greenwald are heirs to C. Wright Mills. And that Mills would be at home now at the Claremont Institute. 

“[The power elite] are in command of the major hierarchies and organizations of modern society. They rule the big corporations. They run the machinery of the state and claim its prerogatives. They direct the military establishment. They occupy the strategic command posts of the social structure, in which are now centered the effective means of the power and the wealth and the celebrity which they enjoy.”

Today, that passage could easily appear in a populist-right publication such as the Claremont Institute’s the American Mind, which denounces the liberal “regime.” If uttered on Fox News or Newsmax, it might be condemned as an example of conspiracism or misinformation that sows discord and undermines confidence in institutions.

And Cooper flags Edward Snowden. 

It hasn’t been a month since President Biden mounted the steps of Philadelphia’s Independence Hall, declaring it his duty to ensure each of us understands the central faction of his political opposition are extremists that “threaten the very foundations of our Republic.” Flanked by the uniformed icons of his military and standing atop a Leni Riefenstahl stage, the leader clenched his fists to illustrate seizing the future from the forces of “fear, division, and darkness.” The words falling from the teleprompter ran rich with the language of violence, a “dagger at the throat” emerging from the “shadow of lies.” 

It's all childish. Taibbi and Snowden: the earnest moralism of libertarian Holden Caulfield, and Snowden's still in Moscow. Willick is something else—"Before coming to The Post in 2022, he was an editorial writer and assistant editorial features editor for the Wall Street Journal,..."—with the dead smile of a teenage Aspie.