A transcript of the hearing was released yesterday. Any idea where to find it? Heard someone quote something odd from it…

Donald Trump has “stopped being President and started being someone trying to beat a criminal rap.”

– Marcy Wheeler, Democracy Now!, 17 April 2018.

Meanwhile, Trump is hosting the Japanese prime minister at his personal hotel and resort, and profiting from the millions spent on the most elegant space, premium foods, wines, and liquor, and entertainment. Provided, no doubt, at Tokyo rates rather than at a US government discount.

There’s also the golf course fees – guests always overpay – and cart, caddy and locker room fees. Plus there’s the cost of caring and feeding for hundreds of American and Japanese security guards, and the money spent by those journalists and other guests with a sufficiently lavish expense account. Members may visit more during these visits, and spend more on food and drink than usual.

All in, a racket that Al Capone would admire.

This is just a hunch, but I think Cohen might be trying to somehow quash the warrant with the nexus Hannity creates to The Privacy Protection Act of 1980. I’ts been years since I’ve studied this stuff and I can’t remember much about the fruit of the poisonous tree doctrine, but it would be a home run for Cohen. Does the Fo’PT still stand… at least in theory?

The Privacy Protection Act of 1980 (“PPA”) is codified at 42 U.S.C. § 2000aa et seq.

https://www.law.cornell.edu/uscode/text/42/2000aa

Here’s some background on the PPA I got from here:

https://epic.org/privacy/ppa/

“The PPA was the Congressional response to Zurcher v. Stanford Daily, 436 U.S. 547 (1978). That case arose when police conducted a warranted search of the Stanford Daily’s newsroom seeking photos of a demonstration at which officers were injured. Staff of the Daily had attended and photographed the violent demonstration and ran a story with photographs. In response to the publication, the police went to the Daily looking for unpublished photographs which investigators could then use to identify and prosecute violent demonstrators. The search turned up no new photographs of the event other than those already published.

The paper challenged the search, and a federal district court found that the search was unlawful: “[i]t should be apparent that means less drastic than a search warrant do exist for obtaining materials in possession of a third party.” Therefore, in most cases, “a subpoena duces tecum is the proper — and required — method of obtaining material from a third party.” The district court dismissed the police’s argument that the First Amendment has no affect on the Fourth Amendment. The court found that the Fourth Amendment must be interpreted in light of the First Amendment and that “[t]he threat to the press’s newsgathering ability . . . is much more imposing with a search warrant than with a subpoena.”

The Court of Appeals affirmed per curiam the District Court’s finding that the search was illegal. However, the Supreme Court of the United States held that neither the First nor Fourth Amendment prohibited this search. The Court stated:

Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue.

Two years after the Court ruled in Zurcher, Congress passed the federal PPA in order to overrule Zurcher and recognize the need of journalists to gather and disseminate the news without fear of government interference. The PPA, with some exceptions, forbids all levels of law enforcement from searching for and seizing journalists’ work product and documentary materials.”

Regarding the Fo’PT, I’ve got these notes on my hard drive, but I don’t know how up to date they are and can’t remember the source(s). Perhaps there’s some experts here on 4th amendment law and the exclusionary rule that could comment. Regardless, it’s a good place to start for anyone doing research on this topic. To those that don’t know, the fruit of the poisonous tree doctrine can be summed up simply: one bad apple ruins the whole bunch. If a piece of evidence was received by unlawful means such as a search without a valid search warrant, any evidence that stems from that one illegal search will be considered inadmissible in a court of law. In other words, all evidence from an illegal search is excluded as a rule to deter bad police conduct.

Defintion of Search: Katz vs. US, 389 U.S. 347 (1967)

Root of exclusionary rule: Mapp vs. Ohio 367, U.S. 643 (1961)

First and foremost, the exclusionary rule is a a court-created remedy and deterrent, not an independent constitutional right.

The Fo’PT doctrine is subject to four main exceptions. The tainted evidence is admissible if:

1. It was discovered in part as a result of an independent, untainted source. See Murray vs. US, 487 U.S. 533 (1988).

2. It would inevitably have been discovered despite the tainted source. See Nix vs. Williams, 467 U.S. 431 (1984).

3. The chain of causation between the illegal action and the tainted evidence is too attenuated. See Maryland vs. Macon, 472 U.S. 463 (1985).

4. The search warrant was not found to be valid based on probable cause, but was executed by government agents in good faith. See US vs. Leon, 468 U.S. 897 (1984) (called the good-faith exception).

Exceptions to warrant requirements:

1. Plain view doctrine;

2. Exigent circumstances that would warrant prompt action to prevent destruction of evidence, escape, or some other consequence improperly frustrating legitimate law enforcement efforts, are present. See US vs. McConney, 469 U.S. 824 (1984).

Limitations for the Exclusionary Rule:

Evidence can only be suppressed if the illegal search violated the person’s own (the person making the court motion) constitutional rights. The exclusionary rule does not apply to privacy rights of a third party. However, there is a narrow exception to this standing requirement, the jus tertii (third party rights) standing exception.

The defendant cannot take advantage of the situation (police breaching rules) to turn the case to his advantage, in face of other evidence against himself. This falls under the exigent circumstances exception.

The Silver Platter doctrine which was ruled unconstitutional in the case of Elkins v. US, 364 U.S. 206 (1960). State officials that obtained evidence illegally were allowed to turn over evidence to federal officials, and have that evidence be admitted into trial.

Also, see the bad faith doctrine for contrast or a reverse of the good faith exception: Scott vs. US, 436 U.S. 128 (1978)

Model code of Pre-Arraignment Procedure – SS 290.2(4)(1975) – A motion to suppress should be granted only if the court finds the violation to be “substantial,” as determined from the consideration of all circumstances, including:

a) the extent of deviation from lawful conduct;
b) the extent to which the violation was willful;
c) the extent to which privacy was invaded;
d) the extent to which exclusion will tend to prevent violations of this Code;
e) whether, but for the violation, the things seized would have been discovered; and
f) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceeding in which the things seized are sought to be offered in evidence against him.

Suppressing evidence in civil proceedings might be challenging.

I’m not an attorney, but it seems to me that Mr. Trump’s “liberal” mixing of private and public business is what will be his undoing. It can’t come too soon.

David S. Joachim@davidjoachim

Cohen floats possibilities for special master to vet Trump documents: Bart Schwartz of Guidepost Solutions, Joan McPhee of Ropes & Gray LLP, Tai Park of Park Jensen Bennett LLP or George S. Canellos of Milbank [Bloomberg link]

Talking Points Memo has an interesting wrinkle — don’t know if others have covered it.

The attorneys representing Cohen in the SDNY case work for a firm paid by the Trump Campaign. Campaign funds can pay for legal fees of people related to campaign work they did, but they cannot be used to pay for unrelated legal fees — such as an investigations into taxi medallion weirdness, money laundering, false financial statements to get money for payoffs, etc. Expenses that are Mueller-related could be arguably paid for by the campaign. It’s less clear what happens if the case is SDNY-related.

https://talkingpointsmemo.com/muckraker/mcdermott-ryan-representing-michael-cohen-russia-investigations-personal-business-dealings

If Cohen is being investigated for crimes unrelated to the campaign, then there’s the obvious question whether the attorneys are being improperly paid by the campaign. If they’re not being paid by the campaign, then the question is who’s paying? Maybe Cohen has enough money in the bank to pay himself, maybe he doesn’t.