Lawyers for both Michael Cohen and President Donald Trump will face off with Justice Department prosecutors in a New York courtroom at 2 pm Eastern Monday, as they battle over what can be done with documents and other evidence the FBI seized from Cohen in raids last week.
Cohen has not yet been charged with any crimes, and prosecutors haven’t publicly said what he’s under investigation for. (Reportedly it’s at least partly related to hush money payoffs he arranged during the presidential campaign.) Yet despite the absence of charges so far, Cohen and Trump are already pushing hard to try to block investigators from reviewing the evidence they seized — arguing that much of it should be protected by attorney-client privilege, which shields some communications between lawyers and their clients from prosecutorial scrutiny.
The Justice Department — specifically, prosecutors from the US attorney’s office for the Southern District of New York, or SDNY — currently plans to review the seized evidence with a separate “filter team,” walled off from the team actually working on the case. The filter team would separate out material that they think could be subject to attorney-client privilege and seek permission from either Cohen, Trump, other privilege holders, or the courts before handing over that material to the main investigative team.
But Cohen filed suit in federal court last week to try to block that review from happening — arguing that he himself should be able to review the seized material first and hand over only what he deems not to be privileged. Judge Kimba Wood of the Southern District of New York has been assigned the case.
And President Trump has hired a new attorney, Joanna Hendon, to back up Cohen. On Sunday, Hendon submitted a filing arguing that a judge should block the filter team process entirely and should instead hand over copies of everything seized to Cohen for his review.
SDNY, however, has said that they are adhering to “common practice” for matters like this, and following “rigorous protocols” by using a filter team. They say they found probable cause that the places they searched and the devices they’ve seized contained evidence of potentially criminal conduct by Cohen himself — something that attorney-client privilege would not protect. They’ve fired back at Trump, too, writing Monday morning that “the President’s proposal” to block their review “would set a dangerous precedent.”
The background to Monday’s Michael Cohen court hearing
The full story of why, exactly, SDNY is investigating Michael Cohen remains shrouded in mystery. Since he hasn’t been charged with anything, even the crimes he’s under investigation for have been redacted in the government’s filings. The evidence justifying the warrant and raids hasn’t been publicly disclosed either.
We have, however, learned some bits and pieces from SDNY’s filings:
- Cohen, they say, “is being investigated for criminal conduct that largely centers on his personal business dealings” and “finances.”
- This investigation has been underway for months with a New York grand jury — meaning that it’s separate from special counsel Robert Mueller’s Russia probe.
- Previously, investigators had secretly obtained search warrants “on multiple different email accounts maintained by Cohen,” and have already had a filter team review them for privileged material.
- They claim they were worried “records could have been deleted” if they hadn’t carried out the raids — but they’ve redacted their explanation for why specifically they had this worry.
Additionally, various media outlets have reported that investigators were searching for the following materials in the raid (though there could be more):
The argument over attorney-client privilege
Trump and those close to him have responded to the raid on Cohen with fury and panic. The president called it an “attack on our country.” Clearly, he does not want investigators to look at what they took from Cohen. But he’s framed his public objections in terms of “attorney-client privilege”:
Attorney–client privilege is dead!
— Donald J. Trump (@realDonaldTrump) April 10, 2018
But though pop culture may have led you to think that all of a client’s communications with his or her lawyer are de facto shielded by “attorney-client privilege,” that is not actually the case.
“Attorneys are not magic sorcerers. Merely having one in the room or on the phone does not automatically mean that anything that is said in that room or during that conversation is protected by the attorney-client privilege,” Loyola law school professor Jessica Levinson told my colleague Sean Illing last year for his roundup expert opinion on the topic.
For instance, communications that aren’t about legal advice would not be shielded. Communications that include people other than just the attorney and his client would also not necessarily be shielded. Additionally, communications in which the attorney helps the client commit a crime or fraud (rather than giving legal advice about what the client did) wouldn’t be privileged, in what’s known as the crime-fraud exception.
Now, SDNY prosecutors say they found probable cause that Cohen’s residence, office, and devices had evidence of criminal activity he may have committed, and that Cohen couldn’t be trusted to turn over such evidence voluntarily. A magistrate judge agreed with them, and that was the justification for last week’s raids.
Still, since Cohen is a lawyer, SDNY is having a separate “filter team” (some call it a “taint team”) review the evidence they seized to separate out any material they think might fall under attorney-client privilege, before letting the actual investigators get their hands on it. The specific process they’ve proposed is:
- The filter team will separate out any communications they deem indisputably not protected by privilege and hand them right over to the investigators.
- However, they will hold on to communications that they think are relevant but “potentially privileged,” and those that might fall under the crime-fraud exception, or other exceptions, to attorney-client privilege. They won’t hand over any of those to investigators right away.
- Then the filter team would communicate with privilege holders’ lawyers (Trump, Cohen, or other Cohen clients) about any documents where privilege might apply. If the two camps disagree on what’s privileged, though, the courts would settle the matter.
It’s this process that Cohen and Trump are trying to stop. They are claiming, essentially, that it should be just them who get to decide which of the seized documents are privileged. They don’t want even the filter team involved at all. This is the matter that will go before Judge Wood today.
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