This article has been updated.
As is often the case with court hearings, the crux of the issue is more mundane than the characters that surround it. Given the attention this case has earned (both because of its import and thanks to the media savvy of Daniels’s attorney Michael Avenatti), an overview of the state of play is warranted.
The case revolves around attorney-client privilege. Because Cohen is an attorney, the Justice Department deployed a protocol for the searches that took into account that some of his emails and documents might be covered by attorney-client privilege. Attorney-client privileged communications are protected by law to assure those seeking legal representation that any discussions they have with their attorneys can be kept in confidence.
In order not to violate that privilege, the Justice Department typically has material seized from attorneys reviewed by Justice officials who are walled-off from the central investigation. Those officials, part of a “taint team” or “filter team,” determine which documents can’t be shared with the prosecutors in the case because they reveal communications covered under attorney-client privilege.
Not every communication between a suspect and an attorney is protected from prosecutors’ viewing. There’s a “crime-fraud” exception, which stipulates that communications with a lawyer meant to further or cover up a criminal act aren’t privileged. If a client, for example, asked his lawyer to show up at midnight with a getaway car, that’s not privileged.
What’s being debated is who gets to review the material seized from Cohen’s home, office and hotel room one week ago. After learning that the government planned to have a taint team start reviewing the material it had seized from Cohen last Friday, Cohen’s legal team filed a motion for a temporary restraining order on Thursday night. In short, they want to have the determination of what is or isn’t privileged made not by government officials but by themselves — or, at least, by a third party called a special master.
During the proceedings on Friday, Cohen’s team defended that request — and were joined by an attorney representing Trump. Trump has been Cohen’s primary (and perhaps only) client since 2006, his attorneys said. Trump’s attorney argued that since only Trump himself could waive the privilege in his communications with his attorney that the president had a stake in the outcome of the proceedings.
Trump and Cohen’s lawyers pointed to the case United States v. Stewart, in which a special master was appointed to review materials for privilege claims. The judge in the Cohen case, Kimba Wood, began on Friday by noting ways in which the facts of the Stewart case didn’t match with Cohen’s, including that the attorney in that case, Lynne Stewart, shared clients and computers with her colleagues in a way that Cohen apparently didn’t.
Paul Rosenzweig, who served with the independent counsel that investigated President Bill Clinton in the 1990s, was skeptical that Wood would give Cohen’s team the power to review its own documents.
“If the government had reason to think that was not a problem, they would have just subpoenaed him in the first place. Then Cohen would have been his own taint team,” said Rosenzweig, who serves as a senior fellow at the center right think tank the R-Street Institute. “Unless the judge thinks there’s something really wonky going on with the government’s investigation, she ain’t going to let Trump’s lawyers be on the taint team.”
Who Cohen’s actual clients are isn’t yet clear. In order for anyone to review the material obtained by Cohen and filter out those communications that are privileged, they would need to know who his clients are. While Cohen has stated that Trump was his only client, his lawyers on Friday argued that he had worked as an attorney for 20 years before joining the Trump Organization in 2006, and some of those clients might have communications included in what was seized. (Wood seemed skeptical that Cohen had three-decade-old documents in his office.)
But Cohen’s attorneys couldn’t actually say who those clients might be or if he had additional clients during his tenure at the Trump Organization. Wood demanded that they try to assemble a list on Friday afternoon, over their objections. (“I believe you can,” Wood told them, “so I want you to try.”) When the proceedings began again a few hours later, Cohen’s team had been unable to do so.
Cohen, for his part, spent part of Friday afternoon smoking cigars with friends on the Upper East Side of Manhattan; it’s not clear if he was in communication with his legal team as they tried in vain to answer the judge’s question.
Wood then ordered a list to be compiled and submitted to the court by 10 a.m. Monday. At the urging of the government’s attorneys, the list will include information substantiating that the listed individuals are clients, so that Cohen’s team can’t simply argue that certain individuals were clients to shield communications with them from prosecutors.
That this substantiation was requested suggests that Wood might be loathe to give Cohen’s team the ability to filter out the privileged communications from what was seized.
Wood also ordered that Cohen attend Monday’s hearing, in part to be able to answer questions about his work more quickly.
Update: It’s also not clear if Cohen has to reveal his clients’ identities to the court. The Monday morning filing indicates Cohen had three clients for whom he did legal work in 2017 and 2018: Trump, Elliot Broidy (see below) and a client who did not want his or her identity revealed.
Whether client identities could be withheld was the subject of extended debate during Friday’s hearing. Cohen’s team argued then and in the Monday filing that the very identity of Cohen’s clients is protected under attorney-client privilege; the government’s attorneys disagreed. Avenatti, speaking to the issue, noted that in most cases an attorney’s clients become obvious since the attorneys represent them in public disputes.
What was at stake, he said, was “a very small subset of clients who consulted on a confidential basis and were never exposed to anyone.” Rachel Strom, an attorney representing ABC News, noted that, according to case law she cited, even that small subset would have to offer a specific reason for not being identified publicly.
This will clearly be part of the debate during Monday’s hearings.
Since the number of clients isn’t vague, Cohen’s team’s claim that “thousands” of documents were privileged seemed to be unsubstantiated. Wood pressed Cohen’s team to explain how it could simultaneously not be able to provide a list of clients to the court but also, in its original request to delay the government’s review of the material, claim that thousands of seized documents were privileged.
After conferring, Cohen’s attorneys argued that since Cohen both represented clients and was represented by lawyers, that estimate was probably accurate. The lead attorney for Cohen, Todd Harrison, admitted that the number might be lower.
Assistant U.S. Attorney Tom McKay, though, noted that the claim made by Cohen’s team in its request was actually much broader than “thousands.” That request claimed that the government had “seized materials containing thousands, if not millions, of documents that are covered by attorney-client privilege or the work-product doctrine.”
The government thinks Cohen’s argument is a delaying tactic. McKay also argued that the request for a restraining order was just an effort to slow down the government’s inquiry. He asked Wood to throw out Cohen’s request entirely, given that Cohen’s team had made claims it couldn’t defend (like the number of documents at stake).
“This has clearly been a delay tactic from the outset,” McKay said. Cohen’s team, he said, was “delaying a government investigation because they can’t come up with the facts to justify their case.”
Trump’s team wants Cohen’s team to review the seized material — and then to get a copy of the material related to the president. In court on Friday, Trump’s attorneys seemed content to have a third-party review the material to determine what might or might not be privileged. In a letter filed with the court on Sunday night, though, Trump’s position was that the only acceptable way of evaluating what was or wasn’t privileged was to turn the material over to Cohen’s team to make that assessment.
Trump’s team was careful on Friday to note that it had confidence in the integrity of the prosecutors. It worried, though, about the appearance of fairness in the case. The review, attorney Joanna Hendon argued, should be able to “withstand scrutiny for all time,” given the stakes. She noted at one point the exceptional nature of her client: “He is the president of the United States.”
“His attorney-client privilege is no stronger than anyone else who seeks legal advice,” McKay replied.
The Trump team’s letter on Sunday also disputed the idea that the request was a delaying tactic.
“All parties agree that the Investigative Team’s review must await privilege review by someone,” the letter argued. “To the extent the government is touting how quickly the taint team will complete its review, that is not a welcome reassurance, but cause for alarm.”
Stormy Daniels’s lawyer is there to ensure that materials pertinent to her legal fight with the president are maintained (and also for some publicity). Michael Avenatti, Daniels’s attorney, was in court on Friday and told the media over the weekend that she would join him there on Monday. Daniels is engaged in an ongoing legal fight in California with Cohen over that 2016 nondisclosure agreement.
Avenatti told The Washington Post why he thought it was important for him to be there last week.
“We want to maintain or ensure that the integrity of the documents, whatever was seized, is maintained,” he said. “And what that means is we want to ensure the documents do not disappear or that there’s a control set that’s maintained regardless of who reviews the documents. That would be especially important to us if the judge ultimately ruled that Mr. Cohen’s counsel would be the ones reviewing the documents.”
Why it’s important Daniels attend isn’t clear. Avenatti, though, has proved to be quite adept at keeping the media’s attention drawn to his client’s fight.
There’s a secondary debate over how public the court hearing should be. Attorneys for the New York Times and ABC News successfully pushed the court to keep the proceedings public on Friday. Wood was concerned that the names of innocent individuals might be revealed if the public were allowed to hear the debate, but Strom, representing ABC, successfully advocated for the use of pseudonyms to allow the debate to move forward without revealing the identities of those individuals.
Who are the individuals? Some might be additional clients of Cohen’s. Since the hearing began on Friday, we’ve learned of one or two others. Elliot Broidy, a top Republican fundraiser, hired Cohen to negotiate a $1.6 million settlement with a Playboy playmate Broidy had impregnated. The Wall Street Journal also reported that Cohen had intervened on behalf of Donald Trump Jr. to kill an Us Weekly story about an alleged affair between Trump Jr. and the singer Aubrey O’Day. Whether Trump Jr. was a client is unclear.
The implication is that many of the innocent individuals whose names will be masked in court might be individuals who’ve been involved in similar efforts to cover up sexual relationships. (“I think there’s no doubt that that’s what we’re talking about here,” Avenatti said, when asked by The Post if he thought that was the likely scenario.)
That said, there is a chance that Monday’s hearing might still be closed to the public. Judge Wood, though, seemed inclined to keep it open.
Rosalind Helderman contributed to this report.
