Then-Special Counsel Jack Smith’s investigators improperly saw potential attorney-client privileged materials on multiple occasions during its probes of President Donald Trump, calling into question the controversial prosecutor’s recent Senate testimony that his team had always followed so-called filter team protocols to protect such information.Emails obtained under federal open records laws by The Oversight Project, a nonprofit investigative watchdog, show that Smith’s team internally acknowledged on at least six occasions between December 2022 and August 2023 when it had accidentally or improperly let suspected attorney-client privileged materials or other sensitive communications slide through filter team reviews. The documents were sent to frontline investigators, like FBI agents.
Such access potentially breached the constitutional protections for defendants and witnesses whose communications were gathered under subpoena or search warrant.
Newly disclosed: What Smith actually did contrasts with testimony
“The Smith Special Counsel Office requests the FBI search its Outlook server and/or eVault for the following potentially privileged document which may have been inadvertently sent to members of the investigative team,” an Aug. 3, 2023 email from the prosecutor’s records officer stated in one such example. “Please search the attached list of individuals’ UNET and FBINET Outlook accounts for a document titled SM_MAL-0021793.
“If found, please notify us of the locations and take steps to purge the document from those locations,” the email added. “The SCO is working to resolve the issue with this sensitive document quickly and we appreciate your help in this matter.”
The multiple instances of failing to protect attorney-client communications created awkward situations for frontline staff, who even considered deleting the email trail of evidence.
“I do not intend to read Brett’s notes, which I have not previously seen. I would delete the email, but for FOIA purposes perhaps I shouldn’t,” one official wrote in an Aug. 8, 2023 email that followed recalls of improperly forwarded evidence of attorney communications.
You can read the documents here.
The emails stand in stark contrast to Smith’s testimony just weeks ago to the Senate Judiciary Committee where he expressed confidence his team had followed the proper rules to keep attorney client privileged testimony out of the hands of agents and investigators who legally weren’t entitled to have it.
“Mr. Smith, it’s your testimony to this committee that you observed the proper investigative protocols at all times, including the filter team?” Sen. Katie Britt, R-Ala., asked at one point during the hearing.
The ex-prosecutor answered: “Yes, we sought to do things consistent with the law and department policy.”
You can watch that testimony here,
