- A federal judge on Monday denied President Donald Trump and his lawyer Michael Cohen’s requests to block the Justice Department from reviewing documents seized during an FBI raid on Cohen’s property last week.
- Judge Kimba Wood held off on determining whether an FBI “taint team” would suffice to review seized documents or whether an independent lawyer, known as a special master, should be appointed.
- Monday’s hearing had no dearth of colourful exchanges.
- They included the shock reveal of an anonymous Cohen client, a prosecutor’s quip about Cohen having more attorneys than clients, and the judge’s implication that Cohen’s attorneys had “miscited the law at times.”
NEW YORK – On Monday, a federal judge blocked President Donald Trump and his longtime personal lawyer Michael Cohen’s requests to prohibit federal prosecutors from reviewing documents seized during an FBI raid of Cohen’s property last week.
Cohen’s lawyers requested both a temporary restraining order and a preliminary injunction against the US government. Both motions sought to prevent prosecutors from reviewing documents and records that had been seized in the raids last week of Cohen’s home, office, and hotel room.
Cohen’s lawyers want to go over the documents and tapes and shield from prosecutors any they deem privileged. Cohen also proposed, as an alternative, that an independent lawyer, or special master, review the files first.
In addition to documents and records, investigators also obtained a search warrant to seize Cohen’s electronic devices and communications between Cohen and Trump. The raid was conducted as part of a federal criminal investigation into Cohen. He is being investigated on suspicion of bank fraud, wire fraud, and violating election law.
Lawyers separately representing Cohen’s and Trump’s interests first asked the district court in Manhattan to block the Justice Department from reviewing the seized communications last week.
Judge Kimba Wood postponed making a decision until Monday’s hearing.
On Monday, Wood denied the temporary restraining order because lawyers representing the Manhattan US attorney’s office said they had not looked substantively at the documents that were obtained. Instead, they said, those documents are being reviewed by a “taint team” – a group of investigators walled off from prosecutors who are primarily responsible for separating out materials that fall under attorney-client privilege.
Wood said she trusted that the Southern District of New York’s “integrity is unimpeachable,” adding that she thought the use of a taint team was a viable option.
But she said she would hold off on making a decision about the preliminary injunction until the court reconvened. She did appear, however, to lean in the direction of appointing a special master.
That was something Joanna Hendon, an attorney representing Trump’s interests in the case, pushed back against. Hendon argued that a special master did not have the right to view privileged materials pertaining to Trump.
Wood dismissed Hendon’s argument, saying it fell outside the scope of what was being debated in the case.
Wood said that before she would make a decision regarding the preliminary injuction, prosecutors must turn over materials that were seized from last week’s raid to Cohen’s attorneys so they can convey to the court how much of it they deemed subject to attorney-client privilege.
She said that after Cohen’s team responds with an estimate of how much of the seized material it believes may be subject to attorney-client privilege, she would make a decision on whether a taint team is sufficient to separate privileged materials out or whether a special master should be tasked with doing so.
She warned that Cohen’s team would need to “move very fast” to determine which materials it thought should be withheld, adding that it was “a test” for them.
“As soon as you’ve seen the documents, I want to hear your proposal for how to move” forward, Wood said.
Wood also asked both sides to each provide four nominees for special master.
A colourful hearing
There was no dearth of noteworthy exchanges during Monday’s hearing.
Cohen’s attorneys said in a filing that Cohen had represented three clients in the past year: Trump, a Republican fundraiser named Elliott Broidy, and an initially unnamed third client.
In a quip near the start of the proceedings, the assistant US attorney Tom McKay raised eyebrows when he remarked that Cohen “has more attorneys of his own than clients.”
But perhaps the most stunning aspect of the hearing was the revelation that the Fox News host Sean Hannity was Cohen’s third client.
The news elicited an audible gasp and scattered laughter from the courtroom, and those observing the hearing from overflow rooms erupted into laughter. More than a few journalists ran outside to report on the revelation, because the court did not allow electronic devices, like phones and laptops, inside the rooms.
Cohen’s lawyers initially pushed back against publicly revealing the name of his third client, noting that the person was a public figure and arguing that revealing the person’s name might cause embarrassment and bring undue scrutiny.
When Wood questioned Cohen’s attorneys as to the legal ground for withholding the person’s name, they said the person had asked Cohen to do so over the weekend.
Initially, Wood entertained the option of allowing Cohen’s attorneys to reveal the name of his third client to the court but not the public.
But when Robert Balin, a lawyer representing several news organisations, argued that revealing the name was in the public interest, Wood appeared to agree.
“I understand he doesn’t want his name out there, but that’s not enough under the law,” she told Cohen’s attorneys.
Also Monday, the US attorney McKay got into several tense back-and-forths with Cohen’s lawyers over their request to review and withhold documents from the Justice Department that they deemed to be privileged.
The hearing hinged on a dispute among the three sides – Trump, Cohen, and the Justice Department – over what constituted privileged material and who should have the right to review it.
McKay said that Cohen’s lawyers were attempting to make an “over-broad” claim of privilege and that while the vast majority of Cohen’s documents that were seized were likely to relate to Trump, attorney-client privilege was much narrower in scope.
The main point, McKay said, was that the opposing counsel would use a broad claim of privilege to “ask for an inch and take a mile.”
Todd Harrison, one of Cohen’s lawyers, responded that it was unfair for prosecutors to imply that “we’re going to be bad on this.”
“It’s not that you’re bad people,” Wood said. “It’s that you’ve miscited the law at times.”
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