Wednesday, May 31, 2006
According to the Washington Post here, DOJ is offering a "filter team" "to be made up of an FBI agent and two Justice Department lawyers not part of the investigation." The idea would be that Jefferson would go through these materials with the team and then he could assert to a court what items might be "privileged."
There is one basic problem here. The "team," albeit not directly involved in this case, is still a government team. It is nice of the government to offer members of their team as part of the "filter team," but shouldn't the team be appointed by the Court? It is not like the items in question are in jeopardy of being destroyed. Might this be a good time for the court to intervene and either peruse the materials him or herself, or appoint someone not associated who can review the items and decide if the items violate privilege. More importantly, might this be a good time to hear from Jefferson's lawyers so that a court can decide if the search was warranted here. One commenter to another blog entry here argues that the court already had the chance to review the search as the court approved the issuing of the search warrant. The problem here is that it was issued the warrant without any objection, because no one was given notice of the search. It was premised solely on what the FBI presented. If this had been a subpoena, the court would have heard from both sides in the objection and not just the DOJ.