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.
taibbi.substack.com
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.
Matt Taibbi
Sep 17
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 ****,” “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.”
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