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The Justice Department Was Dangerous Before Trump. It's Out of Control Now
The current Trump investigation is just the latest chapter of a long-brewing civil liberties nightmare.
On Monday, August 8, Justice Department officials spent nine hours raiding the Mar-a-Lago home of Donald Trump, carrying out 12 boxes of material. When criticism ensued, FBI spokespeople in wounded tones insisted the press eschew the harsh term “raid,” and use “execution of a search warrant” instead.
“Agents don’t like the word ‘raid,’ they don’t like it,” complained former assistant FBI counterintelligence director turned MSNBC analyst Frank Figliuzzi. He added with unintentional irony: “It sounds like it’s some sort of extrajudicial, non-legal thing.”
But it was a raid, as the surprisingly enormous number of people who’ve been on the business end of such actions since 9/11 will report. The state more and more now avails itself of a procedural trick that would have horrified everyone from Jefferson to to Potter Stewart to Thurgood Marshall. Investigating, say, one lawyer, prosecutors raid a whole firm, taking everything — emails, client files, cell phones and personal computers — then have a supposedly separate group of lawyers, called a “taint” or “filter” team, examine it all. In this way they learn the private details of hundreds or even thousands of clients in a shot, all people unrelated to the supposed case at hand.
But, they say, don’t worry, we’re not using any of those secrets, you can trust us. After all, we’re United States Attorneys. (And their paralegals. And legal assistants. And, perhaps, a few IRS or DEA or FBI agents, whose only job is to make cases against the types of people in those files. But still, don’t worry). Just because the whole concept of attorney-client privilege, as well as the 1st, 4th, 5th, and 6th Amendments — guaranteeing rights to free speech, against unreasonable searches, and to due process and legal counsel, respectively — were created to bar exactly this kind of behavior, they insist the state would never abuse this authority.
Taint team targets are unpopular. They’re accused drug dealers, terrorists, corporate tax cheats, money launderers, Medicare fraudsters, and, importantly of late, their lawyers. You can add Trump administration officials to the list now. In cases involving such people government prosecutors have begun making an extraordinary claim. As a citizen cries foul when the state peeks at attorney communications, the Justice Department increasingly argues that affording certain people rights harms the secret objectives of the secret state.
The Trump case is almost incidental to this wider story of extralegal short-cuts, intimidation, improper searches, and especially, a constant, intensifying effort at discrediting the adversarial system in favor of an executive-branch-only vision of the law, in which your right to stand before a judge or jury would be replaced by secret bureaucratic decisions. “Trump has become the way they sell this,” says one defense attorney. “But it’s not about Trump. If you focus on Trump, you’ll miss how serious this is. And it started a long time ago.” When? “Go back to 9/11,” he says. “You’ll see.”
What follows is a brief history of the cases leading to the controversial decisions in Donald J. Trump v. United States of America, as told by some of the key figures in those episodes. TV experts have told you Judge Aileen Cannon’s decision to appoint a Special Master in Trump’s case is an “atrocious,” “shady as fuck,” “utterly lawless” ruling by a “stupid” and “profoundly partisan” jurist, placing Trump “above the law.” Have you noticed these analyses almost always come from ex-prosecutors, that you’ve been trained to not even blink at headlines like, Ex-CIA officer calls judge’s ruling in Trump case “silly,” and that defense attorneys on television are rarer than pearls?
There’s a reason for that:
On October 31, 2001, in an early preview of what was in store for civil liberties, the Justice Department and the Bureau of Prisons issued a new rule allowing the monitoring of communications between certain prisoners and their attorneys. Among the first targets was the infamous “Blind Sheik,” Omar Ahmad Ali Abdel Rahman, an Egyptian fundamentalist leader serving a life sentence for a conspiracy to “wage a war of urban terrorism in the United States.”
After 9/11, the government felt it needed to apply maximum pressure not just on Rahman — whom Osama bin Laden had pledged to free a year before the Tower attacks — but his attorney, New York-based Lynne Stewart. A well-known radical lawyer in the tradition of Bill Kuntsler, Stewart came to represent Rahman on the urging of former Attorney General Ramsey Clark, essentially taking the case because no one else would. This decision would have consequences.
We may have thought Hunter Thompson’s acid-gobbling Attorney in Fear and Loathing in Las Vegas was expressing a cherished national virtue when he quipped, “Even a goddamned werewolf is entitled to legal counsel,” but the Bush government was determined to change American thinking on that score. While Bill Clinton’s Justice Department passed on prosecuting Stewart, the new administration saw the lawyers for terror suspects as being among those “enemies of freedom” we needed to pursue “wherever they are.”
The first time Attorney General John Ashcroft tried to criminally charge Stewart, on April 8, 2002, it was a dramatic rollout. Ashcroft had been savaged by David Letterman over his ear-piercing rendition of “Let the Eagles Soar,” but accepted an invitation to be a Letterman guest, using the spot to announce Stewart’s indictment.
“We simply aren’t going to allow people who are convicted of terrorism continue to achieve terrorist objectives by sending messages and directing the activity from prison,” he said, to applause from Letterman’s hep audience.
Ashcroft charged Stewart with providing “material support” to a terrorist organization. The theory was Stewart aided terror by giving a press release to Reuters relaying Rahman’s remarks. The problematic line suggested Rahman was instructing followers to call off a cease-fire with the government of Egypt’s Hosni Mubarak. Stewart, now deceased, later wrote about the message she conveyed:
The Sheik notes that while he does not have access to any real information, he believes the cease-fire has not brought about any real change in Egypt. The jails are full. Torture continues. And people are being arrested daily and tried in front of military tribunals…
Stewart was controversial but well-respected by other attorneys, many of whom were shocked by her indictment, even if they disagreed with her politics. Some were furious with her for communicating a message on Rahman’s behalf, while others felt she was just advocating for her client.
“Issuing that press release fit with the style of lawyer who believes that you have to try political cases in the court of public opinion at the same time,” says Heidi Boghosian, who knew Stewart well, and was Director of National Lawyers Guild at the time.
The government raided Stewart’s law office. They took boxes of rolodexes, audio tapes, and computers, which “had also been used to perform legal work for clients of other attorneys… or for clients of the defendant who were not identified in the warrant and who likely have no relation to this case,” a judge later wrote.
The state’s plan was to assign a “special team of officers” to take possession of all this stuff — a taint team, though it wasn’t called that — start rifling through it, and direct questions about privilege to “a special Assistant United States Attorney” who’d supposedly been “walled off from the prosecuting team.”
Through this method Ashcroft and then-Southern District of New York U.S. Attorney James Comey sought not only the full documentary cavity search of Stewart, but of every one of her clients not named Rahman, along with every attorney who worked with Stewart, and every one of their clients. Under the auspices of an internal privilege “review,” in other words, the government got a free look at the material they would have had the hardest time gaining permission to search through normal means — protected communications between criminal attorneys and their clients.
Stewart balked, immediately demanding a Special Master be put in charge of keeping these protected files out of government hands. At the time, this seemed a no-brainer. Stewart’s son Geoff, also an attorney at the firm, says the fact they had so many other cases involving Comey’s office made the concept of a mass seizure of firm documents a nightmarish proposition. “It really would be like dropping a bomb to have the same office go through all of our confidential materials,” he says.
The judge in Stewart’s case, John Koeltl, agreed. “It is important that the procedure adopted in this case not only be fair but also appear to be fair,” he said. Koeltl also noted that the government argued that what they’d done was fine, because the Attorney General’s own manual permitted the use of “privilege teams.” This argument was the legal equivalent of the famous quip about Donald Trump being sincere about Making America Great Again because it’s “on his hat.” Koeltl wrote it was nice the Attorney General wrote a manual giving himself permission to do things, but there was no law giving these literary endeavors meaning:
The government argues that it has a standard procedure in place for handling law office searches… The United States Attorney’s Manual, which is issued by the Department of Justice, provides a number of highly detailed guidelines… Nevertheless… The government also concedes that it is unaware of any judicial decision in this District that has compared the relative merits of using a Special Master and using a government privilege team…
Notwithstanding Koeltl’s ruling, Ashcroft and Comey kept after Stewart, eventually charging her under a new legal theory that she’d allowed Rahman to receive and give out messages to the world through his translator, during his (monitored) jailhouse meetings with Stewart. She was convicted and initially sentenced to 28 months. The Bush administration felt the term was insufficiently punitive and Stewart was ultimately re-sentenced to 10 years, of which she served three, before being released to die of breast cancer at the age of 77.
Numerous lawyers said the Stewart case changed the way many in the profession plotted their careers. The case “scared the shit out of the radicals,” says one. Others saw a change in young associates.
“The impact was felt largely with altruistic young attorneys, or even law students, people who want to save the world, work for the underdog,” says Boghosian.
“I think in some ways [the case] was probably clarifying for maybe some on the left,” says Geoff Stewart. “There were some that were a little bit pollyanic about being a lawyer, including my mother — you know, the idea that somehow you’re insulated because you’re playing within a game of rules.”
It soon became apparent that in the War on Terror age, rules meant less and less to prosecutors, and tactics like the use of taint teams became more common. In one episode from the early 2000s, investigators began looking at the dealings of a company called New Venture and its onetime director, Larry Winget. This case has some similarities with the Trump matter. Winget, the target, asked for an independent review, saying some subpoenaed materials were privileged communications.
The government opposed, saying that by asking for an independent privilege review, Winget was:
Requesting this Court to allow him to insert himself into the middle of a grand jury investigation so that he can be the first to screen documents produced . . . [to] subvert the orderly functioning of the grand jury process.
The government was previewing an argument it would soon be making regularly, and would make in the Trump case: that allowing a defendant to hit pause on a case to make sure his rights weren’t violated would irreparably harm the secret investigation. To avoid this tragedy, the court should just let a taint team handle things.
The lower district court agreed. In an appeal to the Sixth Circuit, judges took a starkly opposite view. They knocked down filter team use in strong language, saying in the procedure, “the government’s fox is left in charge of the appellants’ henhouse.”
This ruling would be among the first of a string of opinions dumping not only on filter-team seizures, but other high-handed methods of getting access to otherwise protected information. Abuses were becoming common, particularly in high-profile cases. The Justice Department had begun costing itself, almost as much as its targets, with a worsening addiction to procedural overreach. Via fiascoes like the Andrew Weissmann-led Enron prosecution — which among other things saw the Supreme Court overturn the conviction of already-destroyed Arthur Andersen — the Justice Department was gaining a reputation for being better at grandstanding and trying cases in the press than performing in front of juries.
They increasingly relied instead on tactics like intimidating potential defense witnesses, including by naming huge quantities of unindicted co-conspirators, who often turn informant to avoid being next. There were nearly 300 unindicted co-conspirators in the Holy Land Foundation case, including the Council on US-Islamic Relations, and 114 in just an Enron case with a conspicuously small number of defense witnesses, leading celebrated human rights lawyer Michael Tigar to comment:
I have never seen defendants in a major public trial, especially a white-collar trial, so completely ostracized by witnesses with pertinent information… This level of silence is not normal.
The DOJ also began piling obscene quantities of charges that impress reporters but confuse jurors, like the staggering 362 counts in the drug case of a Tucson doctor, dropped to four when she pleaded out, or the 164 counts, none of which ended in conviction, against certain Enron defendants.
The DOJ threatened companies with prosecution if they paid employees’ legal fees, constantly misrepresented the nature of charges against high-profile defendants to the press (Arthur Andersen was routinely described as accused of obstruction, which requires proof of knowledge of a crime, when the real charge was an obscure theory of witness tampering; even Rahman was never actually convicted of the 1993 Trade Center bombing), and was repeatedly nailed for withholding exculpatory material. Meanwhile the serially unpunished, illegal leaking of grand jury or classified material to dirty up potential defendants and their lawyers has become routine.
All of the above innovations were characteristic of an agency that was improving all the time at bullying defendants into pleas but getting worse and worse at proving cases at trial. This was and is borne out in the numerical decline of trials. After World War II, 20 percent of criminal cases went to court. Today the number is under 2%.
The frustration of courts with deception and intimidation tactics on the part of federal prosecutors came to be expressed in a pre-Trump movement dubbed the “Magistrate’s Revolt.”
Judges were especially upset with prosecutors who were taking advantage of technological changes to seize masses of electronic data — usually computers or cell phones containing private information outside the scope of the warrant request — and, in defiance of courts, keeping that information. In a case involving seizure of emails from a defense contractor suspected of a kickback scheme, a D.C. Magistrate named John Facciola expressed concern that the government would “keep data indefinitely” despite the fact that it is “illegal” to refuse to return “seized documents not described in a warrant.” Facciola, who’d dealt with this issue more than once, blew his top:
For the sixth time, this Court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.
Facciola was persuasive, but overturned by a judge, Richard Roberts, who said the government’s take-everything, construct-probable-cause-later method was okay so long as there was “sufficient chance of finding some needles in the computer haystack.” This was the kind of judicial advice the feds liked: seize now, worry later.
In 2019, the DOJ tried, and failed, to take a major step forward in mass-seizing privileged material. The case was a historic and deserved face-plant for the Justice Department, and ended up being the one Cannon just cited in appointing a Special Master in the Trump case.
The U.S. Attorney’s office in Maryland had long been pursuing a lawyer named Ken Ravenell, one of the top criminal attorneys in Baltimore, believing he was essentially part of the criminal operation of a Jamaican marijuana kingpin named Richard Byrd.
That the feds raided Ravenell’s office in 2014 was one thing. The real shocker came in 2019, when the U.S. Attorney and the I.R.S. raided the law office of Ravenell’s lawyer, Joshua Treem. If the Lynne Stewart case was about intimidating the lawyer of a suspect, this case was about intimidating the lawyer of the lawyer of a suspect.
The DOJ didn’t just take Treem’s files. It took huge amounts of data and files from the firm where Treem was and is a partner, Brown, Goldstein, and Levy. This group of lawyers had been repeatedly recognized as a top firm by U.S. News and World Report and Best Lawyers in America, with several attorneys winning annual “Baltimore Lawyer of the Year” awards, including Treem himself. Despite their standing, the Justice Department treated Treem’s firm like terror suspects, delivering a surprise search replete with armed, kevlar-clad agents, on the basis of a warrant issued in an ex parte hearing with a district judge, meaning the firm had no chance to contest the raid.
The Brown, Goldstein, and Levy lawyers were in a state of shock. “For a civil rights law office, mid-morning on a business day, in the middle of Baltimore, they felt the need to get fully armed,” says Treem, laughing in amazement as he recalls the scene.
“They never even sent a subpoena,” says fellow partner Kobie Flowers. “That was part of our argument later in the Fourth Circuit. We’re all officers of the court. We all have ethical duties to follow. We can’t destroy evidence. Had you just sent a subpoena for this stuff, we would have given it over to you.”
One consequence of becoming a criminal suspect was that Treem, who’d received a target letter six months before, had a conflict of interest that prevented him from defending Ravenell, which of course might have been part of the point. “I had to withdraw from representing my client,” says Treem. “Once I got the target letter, I had to advise my current clients and any people who were calling me to ask for representation.”
Asked if such tactics could be interpreted as a message, that any attorney who wants to stay in business should think twice about representing someone the government is serious about pursuing, Flowers said the intimidation factor goes further than that. “On the one hand, it’s a strategy move. They get to kick Josh off the case,” he said. “But the next step, or a corollary to that thought, is: for many criminal defense attorneys, it causes them to question whether they want to be in this profession?”
Flowers, himself a former prosecutor of corrupt police officers as well as a former public defender, added: “Who’s going to raise their hand against the most powerful government in the history of humankind, if doing so means that you might be searched, have armed agents raid your offices, and then be wrongly accused?”
The government took 37,000 emails from Treem’s inbox alone, of which only 62 were from Ravenell or contained his name. Treem’s firm had over twenty lawyers, files about whom were taken into the custody of a separate office of the Maryland U.S. Attorney’s office. As a judge in the case later wrote, referencing Treem and Ravenell as Lawyer A and Client A:
An “extensive” portion of the seized emails were “from other [Law Firm] attorneys concerning . . . other attorneys’ clients that have no connection with th[e] investigation[s]” of Lawyer A and Client A. Notably, some of those Law Firm clients “are being investigated by, or are being prosecuted by, the United States Attorney’s Office [for the District of Maryland] for unrelated crimes.”
In other words, the U.S. Attorney’s office in Maryland decided to cruise through the defense files of clients that same office was already investigating and/or prosecuting. 4th Circuit Court of Appeals Judge Robert King at one point repeated the Sixth Circuit’s fox/henhouse analogy in thunderous tones, and along with chief Judges Roger Gregory and Allison Jones Rushing, blasted the lower court in a written opinion, saying that by endorsing a filter team, it “erred in assigning judicial functions to the executive branch.”
The 4th Circuit ruling is remarkably one-sided. As one attorney pointed out, it chided the state by using the word rummage four times, as in “Federal agents and prosecutors rummaging through law firm materials that are protected by attorney-client privilege and the work-product doctrine is at odds with the appearance of justice,” and, “Indeed, we discern no harm to the government in barring the Filter Team from rummaging through Law Firm materials that are unrelated to the underlying investigations.” The latter incidentally is a consistent theme in taint-team cases, that not only does the practice make a joke of attorney-client privilege and the separation of powers, the government is clearly not harmed by having to forego it.
“Judge Robert King said very clearly that the determination of privilege is a judicial function,” says Flowers. “It is not an executive function. And try as, as it might, DOJ has never been able to deal with that—taint teams are an unconstitutional abuse of power.”
The 4th Circuit ruling was such a wipeout that the lawyer who argued on behalf of Treem, James Ulwick — if you’re keeping score, that’s the lawyer for the lawyer for the lawyer of the government’s original drug-dealer target — found himself hoping the Justice Department would overreact.
“I was hoping they would take it to the Supreme Court,” Ulwick says now. “But they chickened out.”
Another prominent attorney, unconnected to the Baltimore case, seconded the thought. “No one ever takes this thing all the way up,” he said. “But someone has to.”
Treem was eventually acquitted of falsifying documents, obstructing an official proceeding and conspiring to commit crimes against the federal government in a decision widely seen as an embarrassment to the government. “The jury’s unanimous verdict confirms that Joshua Treem did nothing wrong but rather acted as the superb defense attorney that he is,” the Washington Post quoted lawyer Andrew D. Levy as saying afterward. “I used to have a lot of respect for the U.S. Attorney’s Office. I was one of them, but this [prosecution] was wrong,” another attorney, Gerard Martin told the Baltimore Sun.
Even the state’s case against Ravenell was widely seen as a disaster. Accused of racketeering, narcotics, obstruction, and money-laundering, the jury acquitted on all but the money-laundering charge, and even there, conviction rested on testimony from, of all people, Byrd, whom one attorney called “the least credible witness in the history of the federal courts.” A University of Maryland law professor named Doug Colbert said he was troubled by the precedent. “To be convicted on testimony from a former client bodes ill for lawyers being able to develop a trusting relationship with clients,” he said.
Mass searches continued to proliferate outside the 4th Circuit, often disastrously and to the irritation of judges. The Michael Avenatti fraud case ended in mistrial because prosecutors seized computers from Avenatti’s firm and handed them over to a filter team, which then failed to deliver exculpatory material to Avenatti. In Harbor Healthcare LP v. United States of America, the Fifth Circuit ruled the government had shown “callous disregard” when it failed to seek approval from a judge before it seized as many as 4,000 privileged emails without “intent to respect Harbor’s interest in the privacy of its privileged materials.”
Then there was the investigation of Roger Ng, the Goldman, Sachs banker wrapped up in the infamous 1MDB case involving the looting of Malaysian wealth funds. 121,668 pages of discovery material was taken, and just before opening statements, prosecutors disclosed their filter team had delivered to them communications between a witness and his lawyer. A blog at famed firm Boies Schiller commented:
The filter team had permitted the most basic form of attorney-client communications – communications between the witness and his lawyer about the very subject matter of the investigation – to be produced to the case team in bulk.
Two lawyers I spoke with who’d been involved in taint team cases described being told the mass seizure of privileged files was okay because “it’s in the manual.” One recalled thinking: “I don’t give a shit what your manual says.” This may sound like a small/absurd detail, but it’s characteristic of Justice Department thinking in the War on Terror age. In one arena after another, there have been attempts to replace open, adversarial legal proceedings with internal, executive branch procedures, a kind of bureaucratization of law. Former Attorney General Eric Holder expressed the mindset perfectly in a speech explaining the Obama administration’s reasoning in giving itself power to extrajudicially execute American citizens like Anwar al-Awlaki.
“The Constitution guarantees due process, not judicial process,” Holder said, in 2012, echoing the exact logic behind the FBI using “filter teams” to do the jobs of judges.
Another example involves so-called “National Security Letters.” The FBI after 9/11 began sending these out by the tens of thousands, demanding Internet companies, banks, consumer reporting companies, and other firms hand over private customer information, while obeying a gag order preventing them from telling customers about the surveillance. When the Electronic Frontier Foundation attempted to challenge the system, the government argued that allowing people to just oppose such searches absent some special legal justification placed an unfair burden on secret investigators.
Watch below, beginning at roughly the 27-minute mark, as a government lawyer first goes on and on about all the stringent rules the Attorney General has put in place forcing FBI agents to make sure secrecy is still necessary in the “tens of thousands” of NSLs sent out every year — as if it’s not insane to begin with that they do this — before he shifts gears to complain that allowing people to object to these searches just because they dislike them would be de minimis, too easy, like “sending a postcard”:
By complaining about the de minimis objections of search targets, the state approaches an argument that people or companies need a higher level of justification, something like probable cause, just to claim 4th Amendment rights. They imply judicial review of such procedures is redundant, since the FBI already “must, on its own, undertake review.” This is not an isolated instance. The state already conducts its own disclosure assessments, its own privilege assessments, and even sets its own bar for approving “lethal action.” These may not be judicial processes, but they are “processes,” which this new version of the DOJ believes genuinely satisfies constitutional obligations.
Which brings us to l’Affaire Trump.
The reviled former president Donald Trump has become a giant media version of a Trojan Horse, inside which the Justice Department has assembled an army for a grand assault on civil liberties. The rout is already on.
In Trump-related cases, the DOJ has pushed the tactical envelope in all the same ways it has with other types of unpopular defendants over the years, only it’s done so with a disturbing (and perhaps correct) presumption that the public wants them to color outside the lines more than ever, and deal even more cruelly with targets. The DOJ has political winds at its back it lacked even in the early War on Terror days as it campaigns openly to replace an adversarial system with Judge Dredd style, guilty-when-charged, one-stop-shopping justice.
Not just the Justice Department but multiple federal enforcement agencies have cheated and bullied in countless cases involving the Orange One, without inspiring a whit of outrage from traditional civil liberties defenders.
Whether it’s the FBI lying to the FISA court to get authority to secretly spy on the obviously minor character Carter Page, or prosecutors falsely claiming Maria Butina sold sexual favors (inspiring countless headlines identifying her as a Red Sparrow-style prostitute-spy) before sending her off to solitary confinement for no reason, or sending undercover agents to spy on Michael Flynn when he went with Trump to a pre-election security briefing held by the Office of the Director of National Intelligence (meaning, as Justice Inspector General Michael Horowitz noted, the FBI was effectively spying on the ODNI’s office as well), or burying exculpatory reports from informants about everyone from Page to George Papadopoulous, falsely spreading rumors to journalists that Flynn had an affair with an Oxford PhD candidate, lying to journalists (and even congress) by claiming the release of the name of long-ago outed government source Stefan Halper could “risk lives,” and my personal favorite, Special Prosecutor Robert Mueller arguing that obliging the defense’s right to discovery in a case against a Russian suspect “unreasonably risks the national security interests of the United States,” federal investigators have seemed almost proud of their indifference to due process in the last seven years.
One major innovation, however, is the DOJ/FBI investigation that never leads to formal charges or a trial, but is ostentatiously covered in the news media, almost as if that is the point. The DOJ isn’t just involving itself in censoring news stories, even true news stories, it has also become a major generator of news, whispering thousands of headlines into existence in the last seven years, which their own former employees then comment upon on television. The pee tape for instance never got near a courtroom, but the FBI director helped create the “hook” the networks needed to report it by holding a meeting with then-President-elect Trump that was leaked to CNN (and soon, the rest of the world) within about five minutes. The agency has become a driver of public opinion in ways the Pentagon after 9/11 never dreamed of.
Moreover, in a story that continues to be almost totally unreported, virtually every federal agency that’s investigated Trump across the last six years has leaked its balls off, brazenly violating laws against the release of grand jury information or classified material, with the clear purpose to intimidate. The public found out in CNN 72 hours ahead of time that the first two charges in Robert Mueller’s investigation had been dropped by a grand jury, there were countless stories about grand jury proceedings regarding Manafort, officials leaked the contents of U.S. intercepts in the infamous Washington Post story about Michael Flynn talking to a Russian ambassador, intelligence sources leaked, falsely, that Trump officials had “repeated contacts” with Russian intelligence, there were leaks of material from the supposedly sacred secure reading facility of the Senate Intelligence Committee, CNN leaked word of secret intelligence assessments about Donald Trump’s supposed vulnerability to blackmail, there was the Washington Post story about Erik Prince’s supposed “backchannel” meeting with Russians in the Seychelles that clearly came from intercepted signals intelligence, and on, and on, and on.
Leaks, illegal or otherwise, matter, can destroy reputations and seriously complicate a defense. “We were made aware that my plea deal was leaked to the press by the Special Counsel.,” says former Trump advisor Rick Gates. “It’s a tactic. It adds pressure.” Regarding filter teams, Gates has a crazy story about the seizure of his communications. “Their intention is to filter out attorney client privilege, or spousal privilege, but they still read and review the material.” he says. “My wife sent me a scripture reference from the Bible, as encouragement. They didn’t know how to read it, so they showed it to me in one of my interviews. And they’re like, ‘What’s this?’” He laughs. “I said, it’s scripture from the Bible. And I said, where did you get it? And then they just said, okay, let’s move on.”
Again, a lot of what’s gone on in the Trump years involves the same stunts the DOJ pulled in earlier cases. Butina joined Rahman and Arthur Anderson in seeing her charges consistently misrepresented, as law enforcement sources used confusion over the term “agent” to induce news agencies to describe her using phrases like “convicted spy Maria Butina” (she was actually convicted of a much less serious offense, and certainly not of espionage). Even this latest Trump case, just like the Julian Assange case, has all sorts of commentators confusing the “Espionage Act” with espionage. And the January 6th probe, one of the largest investigations in history, looks headed for a record number of unindicted co-conspirators (and reluctant cooperators), eclipsing even cases like the Holy Land extravaganza. Because these cases are Trump-related, few people ponder the implications.
“That’s the story with progressives and people who care about civil rights and liberties,” says Flowers, who now represents some of the January 6th defendants. “You don’t turn on MSNBC and see them talking. Instead it’s a former CIA person, a former FBI person, a former DOD person, a former federal prosecutor… These are all the people we don’t ask to protect our civil liberties.”
Defense lawyers describe a dramatic change in the attitude of federal prosecutors, who in the Trump years especially began giving off a vibe they describe as part activist, part menace, part secret society weirdness. “Cops go home and have barbecues, try to forget,” says one lawyer. “These people never turn off whatever they are now, and whatever that is is creepy. Like Hale-Bopp cultists, except they put people in jail.”
“If you have the wrong client, they talk to you like the help,” says one attorney. “A lawyer half your age gets on the line and expects you to kiss his ass. And you might even do it, because these people are fucking crazy. They’re capable of anything.”
Several lawyers talked about how the government’s willingness to prosecute either under draconian laws like the Espionage Act, or “weird shit like the Logan Act,” as one put it, or stack the deck by invoking national security or peeking at privileged material, will make defendants hesitate to fight back, particularly when they’re armed with so much information. “It doesn’t matter if you’re right, if you have the truth on your side. They control all of the levers of power in the legal system and use it to punish you, to persecute you,” says Gates. “Maybe you’re right and the world knows you’re right. But if they throw a perjury charge at you, what does that mean? You have to go through another court hearing. You have to pay lawyers. It becomes part of the process they use to target and pressure you.”
Prosecutors and the inevitable filter agents took an incredible ten million documents in the case of Trump lawyer Michael Cohen. Unlike Trump, who waited two weeks to do so, Cohen wisely requested the appointment of a special master to review this material right away. Robert Khuzami, on behalf of the U.S Attorney’s office, sent an amazing letter to Judge Kimba Wood opposing Cohen’s request.
“The Government continues to believe a Special Master is not warranted,” he wrote, adding, “indeed… review of any material by a Special Master would not commence until at least June.” The memo was sent on April 18th of that year, 2018. Speed was basically Khuzami’s only argument against the Special Master. The government was insisting, seriously, that allowing the U.S. Attorney’s office to risk violating attorney-client privilege for the sitting president of the United States was less harmful than delaying its investigation for six weeks.
Meanwhile, prosecutors drew up another over-broad, 41-page warrant in the raid on the home of Manafort, where prosecutors again took anything and everything, and “copied devices and left him the originals.” Bloomberg, like basically all media outlets now, either consciously or unconsciously used language of officialdom in describing the raid, claiming prosecutors “used a filter team to avoid seizing material protected by attorney-client privilege,” even though seizing privileged material is what filter teams exist to do.
Journalists now routinely use language seemingly designed to prep potential jurors for prosecution. In both the case of Julian Assange and the current Trump case, reporters refer to mishandled or stolen “national defense information,” which by an amazing coincidence is exactly the language used in the Espionage Act.
Reporters have almost universally eschewed the term “riot” to describe January 6th, reflexively using “insurrection” and “insurrectionist,” which again, just happens to the language of the likely charge in play, 18 U.S. Code § 2384, “Seditious conspiracy” (both of those words are constantly used by media also). Some outlets install prejudicial presumptions of guilt in the headline, as in PBS’s “Oath Keepers’ lawyer arrested in connection with Jan. 6 insurrection.” Reporters likely don’t see the problem here, but if part of a lawyer’s defense is that what happened on January 6th was not an insurrection but an ordinary riot, he or she will have a steep hill to climb with a jury pool that by now has heard the word “insurrection” ten million times.
Now we have the Mar-a-Lago case, where the Justice Department again asked for the broadest possible search parameters, and once again brought a filter team with them, an up-front admission that they were themselves concerned about privilege issues. However, when Trump asked Judge Cannon to have someone other than the same agency investigating him rule on those issues — to have the correct branch of government decide privilege matters, in other words — there was universal outrage both among law enforcement commentators and media figures, as if catastrophe would ensue from any delay on the road to prosecution.
Harvard professor Laurence Tribe, once a legal authority but now best known as the only person on Twitter crazier than Rob Reiner, wrote in The Guardian that Judge Cannon’s ruling “has to rank high in the annals of the worst reasoned judicial decisions in American history,” because a delay could have political implications, thwarting the obvious “need to prosecute Trump as soon as possible after this November’s midterm elections.”
Tribe isn’t obligated to agree with Cannon and he’s certainly free to loathe Donald Trump, but he should hurl his 2011 “Liberty, Justice, and Equality” award from the ACLU back by catapult if he thinks a judge’s rejection of filter teams — an innovation specifically invented by the executive branch to subvert the judiciary — is one of the worst decisions of all time.
Not that Tribe’s comments are unusual. The resolute lawyer-defender of civil liberties, a sometimes-ponytailed radical who was once a dependable stock character in American society, has mostly chosen to sit this period out. “Progressives and civil libertarians have too often fallen silent in the age of Trump,” is how Flowers puts it.
Moreover, in the age of Trump, prosecutors know they’ve got automatic protections against criticism for abuses. “There’s no question there are built-in protections for those in the DOJ and FBI,” says Gates. “They protect each other and they know they can get away with it every time. It’s an abusive pattern and it is wrong.”
The Justice Department’s Espionage Act case against Trump is based on the notion that improper possession of “national defense information” by an ex-president — a walking biological repository of state secrets — can only be stopped by the FBI, the soul of organizational rectitude and the only body we can trust to secure classified material.
Now, Trump’s behavior is eccentric at best and even some sympathetic defense lawyers I talked to suggested this case involving classified material raised “interesting” questions about the difficulty of dealing with such issues in an ordinary criminal court. But the argument that the ex-president needs to be jailed posthaste is a little hard to take seriously when FBI sources are, once again, illegally leaking secrets about their investigative targets as they pursue Trump for… mishandling secrets.
The latest incidents involve leaks of grand jury material, specifically subpoenas headed to perhaps 50 Trump-connected figures, conspicuously involving some of the last people willing to serve as Trump counsel, like Rudy Giuliani and Sydney Powell and Victoria Toensing and Boris Epshteyn. Many of these people have already been raided, had their phones seized, and even been the subject of FISA surveillance. Now, some of them found out the next subpoena was coming in the middle of the previous week, via phone calls from a Politico reporter who somehow knew grand jury details.
Crimes like the Espionage Act are intentionally drawn up to make conviction easy and punishment severe. Americans need to ask themselves what’s more dangerous: Donald Trump, or a federal law enforcement bureaucracy prosecutes people for the same rules it breaks, regularly argues that national security is harmed by allowing you to see the case against you, and appears ready to start using its vast power to punish political offenses? Is getting Donald Trump worth tossing out constitutional protections? Because that’s where this is all headed.
“When you have principles,” says Flowers, “sometimes those principles even protect people you don’t like.” But we need them, and if we don’t protect them, we’ll all lose them.