Many TV pundits are telling viewers not to worry about the government’s intrusion into possible lawyer/client privileged communications between President Trump and his lawyer, since prosecutors will not get to see or use any privileged material. This is because prosecutors and FBI agents create “firewalls” and “taint teams” to preclude privileged information from being used against the client in a criminal case. But that analysis completely misses the point and ignores the distinction between the Fifth Amendment on the one hand, and the Fourth and Sixth Amendments on the other.

The Fifth Amendment is an exclusionary rule. By its terms, it prevents material obtained in violation of the privilege of self-incrimination from being used to incriminate a defendant — that is, to convict him of a crime. But the Fourth and Sixth Amendments provide far broader protections: they prohibit government officials from in any way intruding on the privacy of lawyer/client confidential rights of citizens. In other words, if the government improperly seizes private or privileged material, the violation has already occurred, even if the government never uses the material from the person from whom it was seized.