The footnotes are the most enlightening part of the Order. Some of them are extraordinary in smacking down the FBI/DOJ/ZOMBIEREGIME and laying miles of groundwork for what may be an abrupt Order of Dismissal:
- Page 4, note 2:" Based on the Detailed Property Inventory, of the approximately 11,000 documents seized, roughly 100 contain classification markings [ECF No. 39-1 pp. 2–8]."
- Page 10, note 1: "When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press."
- Page 12, note 1: "At the hearing, the Government argued that the equitable concept of “unclean hands” bars Plaintiff from moving under Rule 41(g), citing United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005) (“[I]n order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands.”). Howell involved a defendant who pled guilty to conspiring to distribute cocaine and then sought the return of $140,000 in government-issued funds that were seized from him following a drug sale to a confidential source. Id. at 972–73. That case is not factually analogous to the circumstances presented and does not provide a basis to decline to exercise equitable jurisdiction here. Plaintiff has not pled guilty to any crimes; the Government has not clearly explained how Plaintiff’s hands are unclean with respect to the personal materials seized; and in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material, as in the case of the sale of cocaine.
- Page 15, note 1: "In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (“In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”)."
- Page 16, note 1: "The Government implies that additional independent review for attorney-client privilege, such as by a special master, is appropriate only when a search of a law firm occurred [ECF No. 48 pp. 30–32]. Whatever the extent of this argument, it fails decisively here. True, special masters ordinarily arise in the more traditional setting of law firms and attorneys’ offices. But the Court does not see why these concerns would not apply, at least to a considerable degree, to the office and home of a former president. Moreover, at least one other court has authorized additional independent review for attorney-client privilege outside of the law firm context, in politicized circumstances. See In re Search Warrant dated November 5, 2021, No. 21-Misc-813, 2021 WL 5845146, at *1 (S.D.N.Y. Dec. 8, 2021) (appointing a special master to conduct review of materials seized from the homes of employees of Project Veritas for potentially attorney-client privileged materials)."
- Page 17, note 1: "On the current record, having been denied an opportunity to inspect the seized documents, Plaintiff has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion."
141 posted on
09/05/2022 12:22:01 PM PDT by
StAnDeliver
(Tanned, rested, and ready.)
To: StAnDeliver
Great post, thank you.
Nice having FReepers around who read stuff.
148 posted on
09/05/2022 1:11:11 PM PDT by
AAABEST
( NY/DC/LA media/political/military industrial complex DELENDA EST)
To: StAnDeliver
Thank you for posting these footnotes to the court order.
The witch hunt against President Trump needs to get shut down. The Feds definitely overreached.
150 posted on
09/05/2022 1:15:50 PM PDT by
SamAdams76
(4,022,059 users on Truth Social)
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