- President Donald Trump, his longtime lawyer Michael Cohen, and the Trump Organisation have so far claimed as privileged just 252 documents seized during the raids of Cohen’s home, office, and hotel room.
- That is a small number of the documents seized, and experts found this surprising.
- “For a person who claims to be a lawyer, the minuscule amount of allegedly privileged matter is surprising, and what it tells us is that Cohen wasn’t acting as a lawyer very often,” a former federal prosecutor told Business Insider. “He was doing something else.”
President Donald Trump, his longtime lawyer Michael Cohen, and the Trump Organisation have so far claimed as privileged just 252 documents seized last month during the raids of Cohen’s home, office, and hotel room, according to a Tuesday report sent to the US District Court for the Southern District of New York.
Barbara Jones, the special master reviewing the documents, wrote that more than 1.3 million documents provided to her so far were not marked as falling under attorney-client privilege. Some were turned over to federal prosecutors last week, and most of them will come into their hands on Wednesday.
That means a microscopic number of the documents – less than 0.02% of the total that has been reviewed – are sought to be excluded from the criminal investigation into Cohen.
Experts said such a low number was stunning.
“What stands out to me is how very few of the items reviewed were even designated privileged by Cohen and Trump,” Roland Riopelle, a partner at Sercarz & Riopelle who was formerly a federal prosecutor with the US Attorney’s Office for the Southern District of New York, told Business Insider.
“For a person who claims to be a lawyer, the minuscule amount of allegedly privileged matter is surprising, and what it tells us is that Cohen wasn’t acting as a lawyer very often,” Riopelle said. “He was doing something else.”
During an interview on “Fox & Friends” late last month, Trump seemed to suggest that the investigation into Cohen appeared to focus more on Cohen’s business dealings than on his work as an attorney. But on April 10, the day after the raids, Trump tweeted: “Attorney-client privilege is dead!”
“The fact that so few documents seized from an attorney are even claimed to be privileged is surprising,” Mitchell Epner, an attorney at Rottenberg Lipman Rich who was previously an assistant US attorney for the District of New Jersey, told Business Insider.
‘Her review is not a difficult one’
The information on privilege was provided by Jones, a former federal judge in Manhattan, in her most extensive update yet on the document review.
US District Judge Kimba Wood appointed Jones as special master in late April to oversee the review, after Cohen’s lawyers demanded that privileged communications seized by the FBI be reviewed not by the government but by an outside consultant not directly affiliated with any potential prosecution.
Cohen is the focus of a criminal investigation in the Southern District of New York into whether he violated campaign-finance laws or committed bank fraud. He has not been charged with a crime. The next court date in his case is set for Wednesday morning.
Jones wrote in the report that in addition to documents Cohen and his team want to claim as privileged, they could submit designations for “highly personal” items, such as medical records. When Cohen and Trump claim a document as privileged, Jones will review the claim and recommend to the court whether she believes it falls under such privilege and may be excluded from any potential prosecution.
Jones said eight boxes of hard-copy documents and certain phones and iPads had already been fully reviewed. The special master has also received documents from mobile storage devices, three computers, two phones, CDs found in those eight boxes, a video recorder, and electronic images. She said she had not received productions related to three seized items and did not know when to expect them.
In an earlier court filing on Tuesday, Jones billed $US47,000 for her initial work on the case. The government is covering half of her fees, while Cohen, Trump, and the Trump Organisation are paying the other half.
Riopelle said those fees seemed “very reasonable given the magnitude of the documentation involved in the case and the complexity of the issues.”
“The relatively modest amount charged” by Jones, who is a partner at Bracewell, “confirms that there is very little privileged material for her to review and that her review is not a difficult one,” Riopelle said.
Meanwhile, Epner said that because disputed items wouldn’t be turned over to federal prosecutors until all objections and appeals are exhausted, there was more “incentive” for Cohen and Trump to “carry the fight” to the circuit court – and even the Supreme Court level – if Jones and Wood “decide that documents over which privilege is claimed are, in fact, not privileged.”
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