When Judge Cameron Currie surprised Pam Bondi's Counselor, Henry Whitaker, on Thursday with a question about whether DOJ believes Aileen Cannon wrongly dismissed Trump's stolen documents case, Whitaker claimed what distinguished Jack Smith from Lindsey Halligan is that Halligan is closely supervised. I do think that mostly what was driving Judge Cannon's decision in that case was sort of the unique and broad authority that the special counsel possessed sort of free of supervision, which, of course, is an element that we do not have here.
Even assuming the defendant could prove that the government violated the Fourth Amendment or attorney-client privilege in its grand jury presentation (and to be clear, he cannot), the remedy would be to suppress that evidence at trial-not to dismiss the indictment. So, the defendant has not shown that "a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii). He is not entitled to access grand jury material.
Before they had given Comey a shred of discovery, they sent him a draft filter protocol on October 10. Then on October 13 - still before they had handed over discovery, which appears to have revealed they got no new warrant to access this old material - the loaner AUSAs asked Judge Nachmanoff to approve a filter protocol that would give the government the first chance to make privilege determinations.
The 6th Circuit cited the U.S. Supreme Court's 1981 decision in Upjohn Co. v. United States, which held that attorney-client privilege applies when companies seek legal advice through internal investigations.
