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.