Stormy Seas For The President’s Lawyer.
Nuggets From The Government’s Friday Filing.
The attorneys for President Trump’s personal attorney, Michael Cohen, filed an extraordinary request with the court. In response to the search warrants executed against Cohen, they asked to be allowed to first review the documents seized. The investigators would see particular documents and records only if Cohen’s attorneys decide they are not privileged. Such an approach would be unprecedented, and won’t happen.
Today the government filed a 23 page brief in response to this bizarre motion. The brief is full of interesting nuggets regarding the case against Cohen, and President Trump’s potential involvement.
“Taint Team” Procedures.
The Government’s brief explains procedures associated with the “filter team,” or “Taint Team” as the media calls it. This is the standard process for dealing with documents and records, seized from a lawyer, that may include attorney/client privileged information:
1. Agents not involved in the investigation, and prohibited from discussing the matter with agents involved in the case, review the materials first.
2. This “filter team,” decides which documents or records are not privileged, or subject to an exception to privilege (e.g. the crime/fraud exception).
3. The documents or records so designated are presented to defense counsel first with an explanation of the basis for lack of privilege.
4. If defense counsel objects a judge decides.
5. Only after clearing these hurdles do the documents or records go to the investigation team.
If this process seems inherently reasonable and fair to you, courts have decided exactly the same. Cohen’s motion is going to lose.
Other Interesting Stuff.
- Redaction in Action #1: I often focus on redacted portions, knowing that has the most interesting stuff. On page 14 the brief discusses why the government did not use lesser means, such as a subpoena. Reasons include Cohen’s history of overly broad claims of attorney/client privilege to challenge subpoenas and that Cohen is being investigated for crimes “which sound in fraud and evidence a lack of truthfulness.” This section has nearly five lines redacted preceded by, “in the course of its investigation, the USAO-SDNY has learned that . . .” [five lines redacted followed by] “As a result, absent a search warrant, these records could have been deleted without record, and without recourse for the law enforcement.” The redacted material may suggest the government had evidence Cohen planned and prepared to destroy evidence.
- Redaction in Action #2: Redacted from the brief are the specific criminal charges serving as the basis for the search.
- Yet the brief states documents related to the search warrants, given to Cohen’s counsel, identify the specific statutes under which Cohen is being investigated. His attorneys are free to publicly release this if they want.
- Cohen has been under Southern District of NY grand jury investigation for months.
- Mueller’s Special Counsel Office did originally refer the matter to the Southern District of New York. However, that was months ago and since then the SDNY’s investigation has been independent of Mueller.
- The investigation focuses on Cohen’s personal financial dealings and not his activities as a lawyer (another reason the attorney/client privilege is not applicable). Cohen’s activities as an actual lawyer were minimal.
- Cohen was the target of a prior search warrant, to tap his emails. Emails were intercepted, but none were to or from Trump.
- The search warrants also included Cohen’s safety deposit box.
- Cohen was also surveilled by the FBI.
- Trump appears to be Cohen’s only client.
- Cohen was not really part of the law firm he claimed to be in. He was neither partner nor associate. He had a business relationship with the firm that included office space. Cohen’s computer server and email were completely divorced from the law firm, and the law firm did not have access to his files (and vice versa).
- See Footnote 5, on p 11. The government cites Trump’s own words on Air Force One stating he did not know anything about the Stormy Daniels’ hush agreement or payment. The government uses Trump’s improvident words to assert there can be no attorney/client information related to the hush agreement since Cohen was obviously not acting with Trump’s knowledge or direction.
The Friday Hearing Turned A Bad Direction For Cohen With The Judge Demanding His Client List.
Cohen has already said he intends to invoke his 5th Amendment right to be silent in the lawsuit by Stormy Daniels. His first opportunity to plead the 5th in court may come Monday.
In Friday’s hearing Cohen’s attorneys argued documents protected by attorney/client privilege for many clients, with no relation to the investigation, could have been seized by the government.
The government countered Cohen, rarely practiced actual law, had few legal clients, in fact, the only one they were aware of is Trump. So the judge asked Cohen’s attorneys who are all these other clients. Cohen’s attorneys said they were not prepared to answer that question, they didn’t know. The frustrated judge said maybe their client should have been present so such questions could be answered.
The judge ordered Cohen’s attorneys to provide a list of his clients by 10:00 Monday morning and that Cohen be present for a 2:00 hearing to answer questions if needed. The judge noted the list of client names is NOT privileged and can be released publicly. She’s right. Communications between an attorney and client are privileged, but the mere existence of an attorney/client relationship is not generally privileged.
So far the public’s knowledge of Cohen’s “legal work” has been hush agreements between billionaires and their porn star/Playboy model mistresses. Beyond that he is known most as a “fixer” and not a lawyer.
How would you like for your name to be on that client list? Folks might just ask what you need this sleazy fixer for. By folks, I mean your wife, your boss, the Board of your company, oh, and reporters who will surely come knocking on your door to ask “what did Cohen do for you?”
Michael Cohen is in deep trouble that goes beyond payola to a porn star.