Brett Max Kaufman, from the ACLU, asks in Newsweek
,WHO HAS THE LEGAL RIGHT TO LOOK AT MICHAEL COHEN’S SEIZED FILES?
It's a very good question.
Although we on the outside don't really know what's in the warrant, and what its basis was, I, like everyone else, suspects (and hopes) that the prosecutors have Michael Cohen by the short hairs. His behavior reeks
of criminality. As an ardent Civil Libertarian, however, my intellect agrees with his assertion that a "Special Master" should be appointed to sift through the electronic files that have been seized. It's a mental war between, as my son puts it, "my monkey brain", that wants a good comeuppance, and my rational mind that recognizes there needs to be a limit on government intrusion.
For me it has almost nothing to do with "attorney-client privilege", and everything to do with Constitutional structures: "The right of the people to be secure in their persons, houses, papers, and effects".
In normal circumstances, as Mr. Kaufman notes,
When the government executes a search warrant, it sometimes stumbles into things it never anticipated finding. When such things are incriminating and are located in “plain view”—meaning that they are encountered by law enforcement during the reasonable execution of a lawful search—the government is entitled to seize them.
This is fairly
straightforward when the place searched, and the items seized, have physical form. It gets very tricky, indeed, when they are merely bits and bytes.
How is a court to determine what is in "plain view" in electronic files? Just because the "files" are electronic should not give law enforcement carte blanche to traipse through them looking for criminality. And yet... this is Michael Cohen
, Trump's personal shyster.
The approach suggested by Kaufman, a Special Master, is eminently reasonable, but not without inherent dangers. Special Masters, like every other human, have biases and predilections. Some will lean toward law enforcement, others against. Another layer of potential inconsistent application of the law. And yet, and yet, isn't the Fourth Amendment supposed to be a restraint on intrusive government action? We're defining sauce here, it shouldn't matter if the subject is a goose or a gander...
The war within continues. Righteousness or rationality. Where do you stand?