NEW YORK — On Monday, a federal judge blocked President Donald Trump’s and his longtime personal lawyer Michael Cohen’s request to prohibit federal prosecutors from reviewing documents they 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 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 for bank fraud, wire fraud, and violations of election law.
Lawyers separately representing Cohen’s and Trump’s interests first asked the US 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 have not looked substantively at the documents that were obtained. Instead, they said, those documents are currently being reviewed by a “taint team” — a group of separate 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” is a viable option.
But she said she would hold off on making a decision about the preliminary injunction until the court reconvenes at a later date. However, she appeared to lean in the direction of appointing a special master.
Meanwhile, Joanna Hendon, an attorney representing Trump’s interests in the case, pushed back against the appointment of a special master. Hendon argued that a special master does 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.
After deciding on a course of action, Wood said that to get the process going, 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 may be 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 will need to “move very fast” to determine which materials it believes 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 colorful 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, including Trump and Elliott Broidy, a Republican fundraiser, and an initially unnamed third client.
In a quip near the start of the proceedings, 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 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 their third client, noting that he was a publicly prominent figure and that revealing his name might embarrass him and bring undue scrutiny.
When Wood questioned Cohen’s attorneys as to the legal ground for withholding the individual’s name, they said he had asked Cohen to do so over the weekend, and that Cohen had a responsibility toward his client.
Initially, Wood entertained the option of allowing Cohen’s attorneys to reveal the name of his third client under seal. In other words, the court would have known his identity, but the public would not have.
But when Robert Balin, a lawyer representing several news organizations, 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.
Meanwhile, McKay got into several tense back-and-forths with Cohen’s lawyers over their request to review and withhold documents they deemed to be privileged materials from the Justice Department.
The hearing hinged on a dispute between the three sides — Trump’s, Cohen’s, and the Justice Department’s — over what constituted privileged materials and who should have the right to review them.
McKay said 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 may likely relate to Trump, attorney-client privilege is 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.”