Trump Granted Permission to "Intervene" in Cohen's Request for Restraining Order

Here's the latest on the searches of Michael Cohen's law office, hotel room and electronic devices.

Everybody will be back in court Monday. A lawyer for Donald Trump showed up in court today seeking to intervene in the case and the request was granted.

The key takeaway is that Cohen has been under investigation by the US Attorneys office in the Southern District of New York for months for "offenses "which sound in fraud and evidence a lack of truthfulness." (Govt. Brief, Case 18-mj-03161-KMW Document 1, filed today.) The Government believes Trump is Cohen's only client.


The judge ordered Cohen's lawyers to provide a list of his clients by Monday and ordered Cohen to appear personally Monday at a separate hearing set for Monday on potentially privileged documents related to Trump. The Wall St. Journal reports:

U.S. District Judge Kimba Wood ordered Mr. Cohen’s legal team to produce by Monday morning a list of both his clients and his own lawyers with whom he has attorney-client privilege. She ordered them to substantiate through retainers or other proof that the individuals are, in fact, Mr. Cohen’s clients.

Judge Wood also ordered Mr. Cohen himself to show up for a separate hearing Monday that will specifically discuss privileged documents pertaining to Mr. Trump.

I wonder if Judge Wood would have ordered Cohen to produce a list of his clients if he was a criminal defense lawyer. I know that fee payments are not privileged, but I also think there could be situations where merely identifying a client could be the last link in a chain of incriminating evidence that could lead to their Indictment.

The pleadings also confirm Donald Trump doesn't use email. I remember during the Apprentice there were news articles that his secretary printed out his emails and he dictated his responses. I wonder if it's an attention span issue or a refusal to learn how type using 8 fingers instead of just the two thumbs needed for Twitter. (James Comey in his book confirms Trump has small hands.)

Michael Cohen is objecting to the Government's use of a taint team (aka filter team) to first go through what was seized and pull out any information that might be subject to privilege and only turn over the remainder to criminal case agents and prosecutors. His lawyers think they should be the taint team, and be able to go through the material first, and then pass on what they don't think is privileged or subject to the search warrant to the Government. The Government says there is absolutely no legal support for such a proposition.

The Government wrote in a letter to Cohen's attorney that the filter team is already in place. As to who is on it, the Government says in their opposition brief to Cohen's motion for restraining order:

The Filter Team is composed of AUSAs who have had, and will have, no involvement in the investigation. The Filter Team is prohibited from disclosing, directly or indirectly, the substance of any material under its review to the Investigative Team, unless and until the Filter Team has determined that the material is not privileged.

I don't think a taint team composed of prosecutors is much different than no taint team at all. So I get why Cohen is objecting to one. But I also think the law is not on his side.

The Government mentions the "crime fraud" exception to the attorney client privilege several times in its brief. (shorthand for when the client and lawyer are engaged in criminal activity together). It will either seek consent of the privilege holder or permission from the court to examine the documents. Interestingly, the Government claims Cohen has only one client -- Trump -- so who else would the exception pertain to?

Cohen claims that the seized materials contain privileged documents relating to communications with President Trump and other clients. That suggestion, though, as noted above, is undermined by the fact that Cohen apparently rarely emailed with President Trump, and has identified no other clients with whom he has an attorney-client relationship.

In other parts of its brief, the Government refers to the third party disclosure exception to the attorney-client privilege. That would be where the client discusses matters with his attorney in the presence of third parties. In Cohen's case, that would be where Trump and Cohen discussed something that would be confidential except that Trump allowed a third party to be present or authorized Cohen to discuss it with someone else.

Will Cohen fall on his sword for Trump? From media reports, it sounds like Cohen's not in the best financial shape. It may be that some third party benefactor is paying his legal fees, or that Trump Org. has insurance which will pay his fees. If he's paying for them himself, I suspect he'll re-assess his "stand up" position as the well begins to go dry.

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    I think he will flip (5.00 / 1) (#2)
    by CaptHowdy on Sat Apr 14, 2018 at 06:49:12 AM EST
    He's  said to have children that he will not want to be separated from for years.   Which from reports he certainly will.

    No pardons for NY state crimes.

    Great post.  Very informative for the non lawyers.

    One quibble with your post, J (5.00 / 2) (#6)
    by Peter G on Sat Apr 14, 2018 at 12:28:19 PM EST
    You say: "the 'crime fraud' exception to the attorney client privilege ... (shorthand for when the client and lawyer are engaged in criminal activity together)."  To be a bit more precise, the crime-fraud exception to the attorney-client privilege comes into play whenever the client seeks to secure the lawyer's advice in aid of the client's commission of an ongoing or future crime or fraud. The lawyer does not even have to know that this was the client's purpose in seeking legal advice or information, much less does the lawyer have to be involved in the commission or prospective commission of the crime or fraud.

    Yep, the unwitting lawyer (5.00 / 1) (#12)
    by MKS on Sat Apr 14, 2018 at 04:41:55 PM EST
    The privilege belongs to the client, not the lawyer, and thus the client can forfeit it by using his lawyer to help perpetrate a crime or a fraud.

    Every once in a while, somebody tries to invoke the crime fraud exception in a civil case.  State court judges are usually none too impressed, or maybe don't have the resources to conduct the in camera inspection, and generally reject such assertions.

    But, here, a federal judge with plenty of resources, i.e., law clerks, and plenty of resolve, can take the time to really assess such a claim.


    Indeed, if the lawyer is suspected -- (5.00 / 2) (#23)
    by Peter G on Sun Apr 15, 2018 at 12:29:12 PM EST
    even potentially -- of participating in criminal activity (with or without the client), not merely of having been used as an unwitting tool of the criminal client, s/he should be invoking the Fifth Amendment self-incrimination privilege, not just attorney-client. The Fifth Amendment privilege, naturally, is not overcome by a "crime-fraud" exception or anything similar to that. The problem for Cohen in the present situation is that while he might have been able to assert the Fifth Amendment privilege in response to a grand jury subpoena (which compels the production of testimony), the Fifth is not a protection against a search warrant. A warrant only requires the target to stand aside while agents carry out the search; it does not compel the subject's potentially self-incriminating testimony (against which the Fifth Amendment protects).

    I (none / 0) (#18)
    by FlJoe on Sat Apr 14, 2018 at 07:57:38 PM EST
    think the whole  privilege issue is way overblown in this case, it is unclear the Cohen was doing much of any actual legal work for anybody. The Feds seem to be thinking that also
    "It is neither apparent (i) that Cohen, in his capacity as an attorney, has many, or any, attorney-client relationships other than with President Donald Trump."
    and they seem skeptical of that  singular relationship
    Many sections in the U.S. Attorney's Friday response to Cohen are redacted, including one passage that allegedly would "further [bely] the notion that Cohen is currently engaged in any significant practice of law."

    So even for the prosecutors to claim (none / 0) (#20)
    by Peter G on Sat Apr 14, 2018 at 08:53:32 PM EST
    that the crime-fraud exception applies is necessarily for them to say they have reason to believe that T*ump -- who is the "client" here -- was engaging or attempting to engage in criminal conduct, because otherwise Tr*mp would not be using or trying to use his lawyer for the purpose of committing a crime. That said, in my experience the amount of evidence it takes for prosecutors to get a judge to sustain an invocation of the crime-fraud exception to the attorney-client privilege is shockingly low.

    Shocking low (5.00 / 1) (#25)
    by MKS on Sun Apr 15, 2018 at 02:44:13 PM EST
    So, it works for prosecutors?  Interesting.  It doesn't work in a civil context, or at least I have never seen or heard of it working.

    Maybe just the blessed lives of prosecutors....just getting what they want.


    Here is a typical exposition (none / 0) (#27)
    by Peter G on Sun Apr 15, 2018 at 07:58:07 PM EST
    As  aptly  explained  by  Justice Benjamin Cardozo: "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." Clark  v.  United  States,  289  U.S.  1,  15  (1933).  To pierce the privilege, the movant "must demonstrate that there is a reasonable basis to suspect (1) that the privilege holder was committing or intending to commit a crime or fraud, and (2) that the attorney-client communication or attorney work product was used in furtherance of that alleged crime or fraud." In re Grand Jury, 705 F.3d 133, 155 (3d Cir. 2012).
    King Drug Co. of Florence, Inc. v. Cephalon, Inc. (E.D.Pa. 2014). No more than a "reasonable basis to suspect," for goodness' sake. Ordinary civil litigation, to boot. Perhaps the standard applied in the Second Circuit, which governs Judge Wood's court, is more stringent. I would hope so. It should not be that easy to breach the attorney-client privilege.

    Cardozo cite (none / 0) (#31)
    by MKS on Mon Apr 16, 2018 at 01:13:03 PM EST
    Mucho cool.

    Yeah, the articulated (none / 0) (#35)
    by MKS on Mon Apr 16, 2018 at 01:38:42 PM EST
    standard seems really easy to meet.  Tantalizingly easy.  But methinks it is Fool's Gold.

    Just something a Judge uses in special cases, when he or she really has it out for one side.


    Some of the chatter yesterday (none / 0) (#3)
    by CaptHowdy on Sat Apr 14, 2018 at 06:58:26 AM EST
    Was about how crazy it was for Trump to talk to him as he did yesterday because he may have already flipped and be working with prosecutors.

    Seems a bit early to me.  Otoh no one know more about what they got in that raid than Cohen  


    Isn't (none / 0) (#4)
    by FlJoe on Sat Apr 14, 2018 at 07:51:57 AM EST
    there a strong possibility they have an active wire tap on Cohen?

    That too (none / 0) (#5)
    by CaptHowdy on Sat Apr 14, 2018 at 08:22:22 AM EST
    I guess

    My opinion (5.00 / 1) (#10)
    by linea on Sat Apr 14, 2018 at 04:02:18 PM EST
    I feel the Judge should grant Cohen's request that a `judicial officer' or `special master' determine which documents are privileged.

    Depending on how (5.00 / 1) (#13)
    by MKS on Sat Apr 14, 2018 at 05:23:17 PM EST
    many documents or digital files are involved, the Judge can conduct the inspection, or in camera review, herself via her law clerks.....

    But if Cohen has no other clients, and was not performing legal work for Trump, that pretty tells the tale.


    If she assigns a "judicial officer" (5.00 / 1) (#16)
    by Peter G on Sat Apr 14, 2018 at 07:23:38 PM EST
    It is much more likely to be a US Magistrate Judge than a law clerk.

    If it were a civil case (5.00 / 1) (#26)
    by MKS on Sun Apr 15, 2018 at 02:47:35 PM EST
    the Judge would assign a Discovery Referee, who is generally a retired judge with JAMS, etc., who charges gazillions of dollars....mucho dinero, to review the materials...and the parties split the cost.

    I suppose a Judge could not make a criminal defendant pay for a Discovery Referee, etc.


    I heard in a hearing on the Stormy case (none / 0) (#14)
    by CaptHowdy on Sat Apr 14, 2018 at 06:04:01 PM EST
    The government said they had thousands, and perhaps millions of files.  Going back decades.

    Here (none / 0) (#15)
    by CaptHowdy on Sat Apr 14, 2018 at 07:00:34 PM EST
    A skeptical Wood spent the afternoon portion of the all-day hearing grilling Cohen's attorney, McDermott Will & Emery partner Todd Harrison, over claims that "thousands, if not millions" of documents scooped up by federal investigators earlier this week should be considered privileged.

    Interesting. (none / 0) (#11)
    by oculus on Sat Apr 14, 2018 at 04:13:18 PM EST
    Ouch (5.00 / 1) (#38)
    by MKS on Mon Apr 16, 2018 at 02:01:36 PM EST
    via Adam Klasfeld Twitter (hat tip: Armando):

    Judge Wood, to Cohen's attorneys: "It's not that you're not good people. It's that you've miscited the law, at times."

    That is just brutal.   And, this from a good firm....I still do not know how the Business Committee at McDermott signed off on this representation.    

    My understanding (none / 0) (#1)
    by Ga6thDem on Sat Apr 14, 2018 at 06:13:21 AM EST
    about the judge asking Cohen for his client list is to prove whether Cohen actually practices law in a normal legal setting or if he is more or less just a Trump employee who happens to be a lawyer.

    I consider it fairly normal for the client (none / 0) (#7)
    by Peter G on Sat Apr 14, 2018 at 01:27:18 PM EST
    to be allowed to intervene to assert and protect attorney-client privilege, when the lawyer is under investigation and therefore cannot be counted on to place the client's interests first (as a lawyer should) and protect the privilege on the client's behalf.
       Another interesting trivia point: I appeared before Judge Wood only once, about 15 years ago, but I found her very intelligent, serious, even-handed, and law-focused. The fact that she was briefly in training to be a Playboy Club "bunny" cocktail waitress, while getting her Masters at the London School of Economics before going to Harvard Law School, was not in any way relevant to my case. Nor that her publicly-disclosed affair with a Wall Street financier led to her second divorce. Nor that she had to withdraw her name from nomination by President Clinton as U.S. Attorney General because of her failure to disclose that she employed an undocumented alien as a "nanny," in violation of U.S. immigration law. She had been nominated to her judgeship by President Reagan, despite being a registered Democrat.) All three of those personal details from her past life seem now to resonate with some of the background of the current case.

    Peter, is it considered a lawyer-client (none / 0) (#9)
    by ruffian on Sat Apr 14, 2018 at 03:50:35 PM EST
    relationship when Cohen is arranging payments to mistresses of people like RNC donor Broidy? Would that be considered a legal client or a business client? Does there have to be some specific kind of legal services contract for the privilege to apply?

    The attorney-client privilege is being overblown (5.00 / 1) (#19)
    by Peter G on Sat Apr 14, 2018 at 08:25:30 PM EST
    here. Strictly speaking -- which is all that is going to count in Judge Woods' courtroom -- the A/C privilege protects only against compelled disclosure of confidential communications from another person to a lawyer for the purpose of obtaining legal advice or information. As I understand it, the person seeking advice need not be a "client" in any formal sense, and it is irrelevant how much of a legal practice the lawyer has, or how many clients. Again, strictly speaking, the lawyer's response to the person is not even privileged except to the extent that it tends to reveal the other person's confidential communication or query to the lawyer. So, to your specific question, Ruffian, first of all nothing is protected against valid legal process (a subpoena, summons, warrant, civil discovery, etc.) unless it tends to reveal a confidential communication to the lawyer. And yes, in my opinion, arranging a payment from your client (or from a third party on your client's behalf) to another person, either to settle a legal claim or to compensate them for refraining from capitalizing on a business opportunity (such as writing about your now-famous client), sounds to me like legitimate legal services of a lawyer. It is a form of negotiating a contract between your client and the other person.

    It's perfectly acceptable for male executives to frequent strip clubs, but Heaven forbid that one of their female colleagues should have ever danced in one as a means of livelihood for herself and her family. Men who have multiple sexual encounters with different partners are studs, whereas women who regularly partake of sensual delights with different men are sluts. Men who assert themselves before others have a commanding presence, while women who do the same are bi+ches. Isn't that the way the world works? Why should Judge Kimba Wood be an exception to that rule?

    "No matter how cynical you get, it is impossible to keep up."
    - Lily Tomlin

    Aloha. ;-D


    Judge Wood's (none / 0) (#8)
    by KeysDan on Sat Apr 14, 2018 at 03:14:32 PM EST
    withdrawal of her nomination by President Clinton for Attorney General was in the wake of the earlier withdrawal of Zoe Baird for that position

     Miss Baird  hired a couple from Peru as nanny and chauffer--the couple were undocumented and Miss Baird did not pay taxes until shortly before disclosure.

      Judge Wood hired an undocumented alien as a nanny before the Immigration Reform Act of 1986 made it illegal to do so. Moreover, she paid the required social security taxes. What she did was legal, but the nanny was in the country illegally.

     Her failure to disclose (or mislead) is reported to have been in response to the question: "Do you have a Zoe Baird problem?"  to which she answered, in the narrow sense, that she did not. But, by then, her nomination in the climate of the times, was untenable.

     In 1995, there were changes in the law for household help's tax reporting.  But, the entire episode was intended to embarrass the new Clinton administration on the basis of infractions that now seem quaint.

    FOX NEWS SUNDAY (none / 0) (#21)
    by CaptHowdy on Sun Apr 15, 2018 at 08:46:20 AM EST
    Is surprisingly fact based today.

    The raid on Cohen is seen as entirely legal and unremarkable

    Firing Mueller or Rosenstein is a really really bad idea.

    They have some nitpicks for Cohen's book but that's not surprising

    Do you mean nitpicks for *Comey's* book (none / 0) (#22)
    by Peter G on Sun Apr 15, 2018 at 12:18:10 PM EST
    not "Cohen's"?

    Yes (none / 0) (#24)
    by CaptHowdy on Sun Apr 15, 2018 at 12:31:25 PM EST
    Trump's latest filing - would be (none / 0) (#28)
    by Anne on Mon Apr 16, 2018 at 06:54:02 AM EST
    interested to know the lawyers' take on it.

    Trump demanding the chance to go through seized materials to determine if any are or should be protected by attorney/client privilege.

    From TPM:

    Trump's lawyers asked that he and Cohen receive a copy of the materials obtained in last week's raids so they can give them a first pass for exchanges that may be privileged. A so-called "taint team" of DOJ attorneys uninvolved in the case would be "plainly inadequate" and fail to "zealously protect the President's privilege," Trump attorney Joanna Hendon wrote in the letter addressed to Wood.


    In her Sunday letter, Hendon said that agents acted in an "aggressive, intrusive, and unorthodox manner" during the raid and that their actions were "disquieting to lawyers, clients, citizens, and commentators alike."

    She argued that U.S. prosecutors had made clear in their filings before the court that they've "pre-judged the matter of privilege" by insisting that few of the documents seized were likely to warrant that protection, and that the "staggering amount of attention trained on this investigation, Mr. Cohen, and the President" make it impossible for them to review the material fairly.

    Is this kind of thing standard?  Does the attorney make a convincing argument?  Is this kind of thing normally done in letter form, as opposed to a pleading?

    I'm assuming the prosecutors will have an opportunity to respond before the judge makes a decision.

    If the docs were sought by subpoena (none / 0) (#29)
    by Peter G on Mon Apr 16, 2018 at 12:06:20 PM EST
    rather than seized under a warrant, that's how it would proceed, that is, the privilege-holder (client) or the lawyer-under-investigation on the (former?) client's behalf, would advance the intial claims of privilege, document by document. I think Judge Wood would have discretion in the present situation to allow that request, which is unconventional but not unreasonable.

    Thanks, Peter. SDNY has responded, (none / 0) (#30)
    by Anne on Mon Apr 16, 2018 at 12:36:04 PM EST
    in a letter, here.

    Again, from TPM:

    Federal prosecutors in a letter to U.S. District Judge Kimba Wood Monday pushed back on President Trump's request that he and his attorney Michael Cohen get the first opportunity, before Justice Department lawyers, to review documents seized in FBI raids on Cohen last week.

    "[T]he President still cannot identify a single case in which a court has ordered such a remedy, and for good reason -- the President's proposal would set a dangerous precedent," the letter, from the deputy U.S. attorney overseeing the investigation and three assistant U.S. attorneys in New York's Southern District, said.


    The federal prosecutors in their letter to Wood Monday, called Trump's position "extreme" and said that under his theory, "every person who has communicated with a lawyer would be given the power to turn every search warrant into a subpoena and to demand the return of lawfully-seized evidence in order to undertake their own review of the evidence."

    "Such a rule is unworkable and ripe for abuse," the assistant U.S. attorneys said.

    I understand that today, Cohen will not be hanging out with his boys smoking cigars, but will be present in the courtroom - as will Stormy Daniels and her attorney.

    Interesting times, eh?


    Armando (none / 0) (#32)
    by MKS on Mon Apr 16, 2018 at 01:13:37 PM EST
    found two twitter feeds live blogging the Cohen hearing today.

    Sean Hannity (none / 0) (#33)
    by MKS on Mon Apr 16, 2018 at 01:36:09 PM EST
    is Cohen's third, previously undisclosed client--he only has three clients.

    Was Hannity trying pay off someone a' la Stormy Daniels?

    This is too funny.  Surreal.

    Did Trump refer Hannity to Cohen?  

    Why did Hannity need (none / 0) (#36)
    by MKS on Mon Apr 16, 2018 at 01:45:51 PM EST
    a fixer?  A fixer who specializes in pay offs and Nondisclosure Agreements.

    And, Hannity was identified as a legal client, as opposed to a business client seeking consulting advice.


    I remember (none / 0) (#37)
    by MKS on Mon Apr 16, 2018 at 01:54:26 PM EST
    Watergate as it was unfolding.   Sumb*tch, this is even more amusing and amazing.

    Justice Marshall apparently watched the Watergate Hearings live, and would bellow out "you lie!" in great amusement.  According, iirc, to clerks quoted in The Brethren.


    Hannity (none / 0) (#39)
    by FlJoe on Mon Apr 16, 2018 at 02:45:04 PM EST
    now claiming that Cohen was NOT his attorney.

    Okay, then Cohen (none / 0) (#40)
    by MKS on Mon Apr 16, 2018 at 04:49:47 PM EST
    only has two clients.  

    Or if Hannity blabs enough, then the same result occurs with any privilege being waived and Cohen having only two clients' communications to protect.


    Oh no, Hannity still seems to think he (none / 0) (#42)
    by Militarytracy on Mon Apr 16, 2018 at 04:51:03 PM EST
    Has some kind of privelge even though Cohen wasn't his attorney.

    I think he should be covered (5.00 / 1) (#43)
    by linea on Mon Apr 16, 2018 at 05:33:07 PM EST
    Any legal advice or discussion that Cohen had with Hannity should be covered under atty-client privilege whether or not Cohen was retained or paid by Hannity. Just like, if you go to a lawyer's office and discuss a case but decide not to retain him, the discussion should still be covered under atty-client privilege even though no monies were exchange for services.

    I agree with that BUT (5.00 / 1) (#46)
    by MKS on Mon Apr 16, 2018 at 08:27:56 PM EST
    did Hannity actually seek legal advice, and has he waived the privilege by talking so much about the substance of the communication, i.e., it was not about a third party, was about real estate, etc.?

    Well, my thoughts... (none / 0) (#47)
    by linea on Mon Apr 16, 2018 at 09:46:26 PM EST
    Has he waived the privilege by talking so much? I don't see how stating, `I talked to a lawyer about realestate' would cause one to lose atty-client privilege in relation to documents with details of the realestate transaction.

    Did Hannity actually seek legal advice? I believe Hannity says he asked for legal advice. Am I mistaken?

    Obviously, It wouldn't be privileged if he wasn't asking for legal advice. For example, an email where he writes, `Hi Michael, I'm considering going in on that Acme limited partnership to build an eldercare facility on Indian burial grounds in Arizona. I heard you're bullish on Arizona realestate and wanted to get your opinion on the likely rate of return based on your previous investments.'


    Wow (none / 0) (#34)
    by FlJoe on Mon Apr 16, 2018 at 01:37:33 PM EST
    according to twitter Sean Hannity is revealed as on of Cohen's three clients.

    My only question right now (none / 0) (#41)
    by Militarytracy on Mon Apr 16, 2018 at 04:49:52 PM EST
    Did Sean Hannity's wife know that Hannity needed some legal advice from Cohen?

    All I know is (5.00 / 1) (#44)
    by jondee on Mon Apr 16, 2018 at 06:34:42 PM EST
    that I was feeling melancoholic earlier in today, and now I'm as frisky as a young colt, which just proves that these mood swings aren't stictly biochemical.

    The (none / 0) (#45)
    by FlJoe on Mon Apr 16, 2018 at 07:26:48 PM EST
    CNN heads are positively giddy, ding dong the wicked Hannity is dead. Even Dershowitz would not defend him or Cohen.