Retired Judge Barbara Jones will review files for privilege, not a DOJ/FBI ‘taint team’
Judge Kimba Wood has resolved the issue of how files seized from Michael Cohen, which included at least some files related to his (limited) law practice, would be handled. Those records were seized by the FBI and U.S. Attorney’s Office for the Southern District of New York as part of a criminal investigation of Cohen resulting from a referral from Special Counsel Robert Mueller.
The background on the seizure and legal wrangling are set forth in these prior posts:
- Trump attorney Michael Cohen goes to Court to get back seized records
- Trump court filing in Michael Cohen case: Objects to DOJ/FBI “taint team” deciding what is attorney-client privileged
- Michael Cohen court hearing: Judge considers Special Master to review seized evidence, Sean Hannity revealed as Cohen client
- “Why should [prosecutors] get to read Sean Hannity’s communications with Michael Cohen?”
The short version of the legal fight was that the feds wanted a DOJ/FBI “taint team” to review the documents for privilege, at which point the documents would be turned over to the prosecution team. Cohen, who initially wanted but then gave up demanding return of the documents, wanted his own counsel, or alternatively a Special Master appointed by the court, to do the privilege review.
Cohen argument is that allowing the government to view potentially privileged documents violates the rights of his clients, which included Donald Trump and Sean Hannity. As Alan Dershowitz articulately argued, allowing the feds access to privileged documents, even if the documents ultimately cannot be used, would do substantial damage to the attorney-client privilege beyond this case.
I argued after the last hearing:
Contrary to many reports, the request for a Temporary Restraining Order was not denied on the merits, but because it was moot. The TRO request was moot because pending a court ruling on procedures for review of materials, the feds are not reviewing what they seized. That was my understanding from live tweeting of the proceedings, and it’s confirmed by a letter the prosecutors filed in court today (pdf.) ….
The procedure to be used is important because there are attorney-client materials involved for as least three clients of Cohen — Donald Trump, Elliot Broidy and Client No. 3.
Client No. 3 was revealed in Court on Monday to be Sean Hannity, by court order. I didn’t know it until today, but that Order originally was going to have Client No. 3’s identity provided to prosecutors under seal, but attorneys for the NY Times and CNN convinced the judge to have it disclosed in open court….
The public disclosure of Hannity’s name was an egregious violation of his legitimate expectation that his legal consultation with Cohen, on matters that appear to be completely unrelated to the criminal investigation, would be maintained as a secret….
I don’t have or not have “faith” in the U.S. Attorney’s Office for the Southern District of NY. It’s irrelevant. Strict procedures independent of the prosecutor’s office should be put in place to protect not only the attorney-client privilege related to matters under criminal investigation, but also a more broad protection for the confidences of people like Sean Hannity who are innocent bystanders.
2. The Special Master shall render decisions regarding privilege issues related to the Seized Materials. The specific duties of the Special Master are as “follows, which shall include all powers necessary to carry out the duties below:
a. Conducting an initial privilege review of the Seized Materials and adjudicating privilege disputes between the parties in accordance with this Court’s oral ruling in this case on April 26, 2018; ….
* * *
8. The Special Master shall have access to individuals, information, documents, and materials relevant to the orders of the Court that she requires to perform her duties, subject to the terms of this Order Appointing a Special Master. Such materials shall be provided to the Special Master on an ex parte basis as the Special Master sees fit in connection with potentially privileged or confidential materials.
9. In particular, the Government shall provide to the Special Master a copy of the Seized Materials, the search warrants executed in this case, and the underlying application materials for those search warrants.
* * *
12. As an agent and officer of the Court, the Special Master and those working at her direction shall enjoy the same protections from being compelled to give testimony and from liability for damages as those enjoyed by other federal judicial adjuncts performing similar functions.
This represents a victory for Cohen, as the feds will not get to see the materials until the equivalent of a court review, albeit by a Special Master not the Judge. It also offers a measure of protection for Trump and Hannity, as any leaks would have to come from the Special Master’s office, which seems much less likely than from the feds.
Donations tax deductible
to the full extent allowed by law.