The editors of the Washington Post call for a more restricted ruling on a “special master” to review the materials seized by the FBI from President Trump’s Mar-A-Lago residence. I have a problem with this section of their editorial:
And if a piddling portion of materials are covered by attorney-client privilege, there’s no need to halt the investigation as a whole to identify them.
That’s exactly the reason a special master may be necessary. The FBI can’t be allowed to go on a fishing expedition in materials that are protected by attorney-client privilege. It doesn’t make any difference whether only .01% of the documents are subject to that privilege. Which .01%?
However, I don’t see anything wrong with their proposal with one proviso:
The much-preferred alternative is for Judge Cannon to approve prosecutors’ proposal to alter her ruling: The FBI would be permitted to keep reviewing only the more than 100 classified documents it seized, and the special master, in turn, would be barred from examining them.
The proviso is this. As they say on Jeopardy I’ll put it in the form of a question. Is it possible for a document to be simultaneously classified and subject to attorney-client privilege? If so the ruling could be change to allow the special master to review the classified documents first while prohibiting the FBI from reviewing the non-classified documents.
An additional complication would arise if a) a document were classified AND subject to attorney-client privilege and b) the FBI had already reviewed it or c) the FBI had already reviewed some unclassified documents. That would suggest that the ruling be altered to cover first the classified documents, then those already reviewed by the FBI whether classified or not, then the balance. The risk is that anything the FBI has already reviewed or materials derived from them might be barred from being used in a future prosecution.







