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Court appoints Special Master to screen Michael Cohen files seized by Feds

Court appoints Special Master to screen Michael Cohen files seized by Feds

Retired Judge Barbara Jones will review files for privilege, not a DOJ/FBI ‘taint team’

https://www.youtube.com/watch?v=ZJWhIW_b0A8

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:

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.

In her April 27, 2018 Order (pdf.)(embedded below), Judge Wood appointed a Special Master, retired Judge Barbara S. Jones:

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.

Jones’ Declaration accepting the appointment (pdf.) is embedded below.

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.

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Michael Cohen v. USA – Order of Appointment of Special Master by Legal Insurrection on Scribd

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Michael Cohen v. USA – Declaration of Special Master Barbara S. Jones 4-26-2018 by Legal Insurrection on Scribd

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Comments

assemblerhead | April 27, 2018 at 5:12 pm

Having a Special Master at this point doesn’t matter.

The MSM has already been publishing ‘excerpts’ from the seized materials. Twitter has been heavy with tidbits leaking out.

The media is just trying to figure how to release ‘it’ without burning their sources.

    Tom Servo in reply to assemblerhead. | April 27, 2018 at 6:58 pm

    The main thing I learned from these leaks is that Hannity has been a heck of a lot smarter with his investments than I ever dreamed he would have been.

      JusticeDelivered in reply to Tom Servo. | April 27, 2018 at 9:54 pm

      Considering how the cab industry is being shaken up, investing in other stuff makes a great deal of sense.

    What was the Cohen news this morning?

    “Cohen and his father-in-law loaned millions to a taxi driver to open a pot shop”!!!!!!

I’m unhappy that Cohen got caught up in the fake investigation. I’m suspicious that the goal here is to scare people away from Trump and his administration, a clever strategy. Work for Trump and we’ll ruin you.

The money some of the indicted by Mueller have spent on legal fees is staggering. If it were me, I’d lose everything I have to pay such costs (there’s something wrong in America if the government, with its infinite taxpayer-filled pockets, can put you out of business, even if you’re innocent!).

That said, I’m deeply put off that Cohen took the Fifth (I hope I have that right). In my small legal view, taking the Fifth is an admission, at the very least, of moral culpability. It may well mean more.

Which will make Trump look bad–by association.

    ecreegan in reply to Titan28. | April 27, 2018 at 5:44 pm

    After what happened to Gen. Flynn I think Cohen would be an idiot to NOT take the fifth to avoid talking to Muller’s investigation.

    oldgoat36 in reply to Titan28. | April 27, 2018 at 7:13 pm

    With the Government playing with Monopoly money, at least as far as they are concerned, it is a losing proposition fighting charges they bring up because the legal fees ruin you even if you are found not guilty. I believe this is Mueller’s big tactic in getting people to plea guilty to charges, as Flynn did.

    Fighting against a team such as Herr Mueller has put together, along with Mueller using questionable tactics of pressure, his team in the search of a crime meant to harm and bring down Trump is leaving victims all over the place who will have no redress for their costs.

    It sickens me that a weaponized government agency can do as they are doing all in the name of protecting the swamp and the cash cow that the Clinton Crime Family has become. Sessions is looking to be part of it for his recusal and having Rosenstein involved, the same one who should have recused himself because of his direct ties to the FISA court warrant. Mueller with his hands dirty over the Uranium One deal should not have been appointed either.

    Given the shady, if not outright criminal behavior of the FBI in all this, (Thank you crooks Comey and McCabe), I doubt these documents and materials taken from Cohen have just sat there collecting dust while the agents twiddle their thumbs.

    Our government is broken. Maybe those who are accused of crimes by the government should be given equal funds for their legal fees so as to combat the charges brought. It has been known that costly lawyers can bring a not guilty sentence to people who sure seem guilty, but especially when dealing with the Federal Government, the resources at hand for the government far outweighs anything even the wealthiest can match. Such is the tactics of Mueller, and he knows it.

    It should be a more level playing field.

      JusticeDelivered in reply to oldgoat36. | April 27, 2018 at 9:47 pm

      That is exactly what certain people were trying to do with George Zimmerman. My attention was drawn to the case because of the high profile disinformation campaign, at which point I called the original attorneys, leaving a message and suggested they set up a fundraising campaign. A week later it was operational. The truth is, that without fundraising, Zimmerman would have been toast.
      I had hoped that Sessions would look into a multitude of crimes committed by those who have been conducting these campaigns for revenge & profit. The S*it needs to be reigned in.

    Geologist in reply to Titan28. | April 27, 2018 at 7:43 pm

    Everyone questioned by the legal authorities should take the Fifth, no matter what. Anything I say can be twisted and distorted to be used against me. No matter how innocent I am of any wrong-doing, if I do not understand the question to mean the same exact thing that anyone else can twist it to mean, I can be convicted of some kind of lying to the authorities, obstruction of justice, interference with an investigation, … And this presupposed good faith on the part of the investigators.

    And I have not even touched on memory issues or knowledge issues. Have I ever met with a representative of the Russian government? Well, not to the best of my knowledge, but it I say “no,” do I know if the guy I spoke to about different vodkas at the liquor store was in fact a Russian agent? That photo they have of me talking to the guy could convict me, evenif I did not know he was a Russian agent. The Mueller investigation should have taught us all to plead the Fifth!

    MarkS in reply to Titan28. | April 27, 2018 at 9:48 pm

    Rep Louis Gohmert R-TX has a scathing 48 page expose’ of Mueller’s history and tactics which confirm the points in your comment

    tom_swift in reply to Titan28. | April 28, 2018 at 9:51 am

    taking the Fifth is an admission, at the very least, of moral culpability.

    Not at all. It’s a declaration by the victim that he’s not going to make things easy for his persecutors by playing along with their rigged game.

“Special masters?”

Reminds one of the Warren Commission. We know where that went.

This is the JFK assassination, with out the shooting.

Trump is us. WE are Trump. They destroy him, they destroy us.

Hmmm….A retired Clinton appointed judge appointed to sort through the stolen docs…..what can go wrong?

Judge Woods shows much more confidence in the judicial system than it deserves. While she is deciding who should be looking at the data, we’re reading about the data on the Internet and watching it discussed on television. Does she not see the disconnect here?

Judge Woods should have at least named a special master that was acceptable to all parties involved.

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.

Assumes the Feds have not already looked through, or made copies of everything they seized, and will look through them without the Master’s approval. Given all that’s happened, I’m very dubious here.

This was a good move by the court.

Apparently, everyone missed the REALLY big news this morning regarding the Cohen/T-rump imbroglio…

https://hotair.com/archives/2018/04/26/uh-oh-actually-michael-cohen-represent-stormy-daniels-deal-says-trump/

Well, of COURSE…!!!

Duh Donald is both a lying liar who lies and not really all that bright.

Interesting analysis.

The man can’t seem to STFU.

    Barry in reply to Ragspierre. | April 27, 2018 at 10:22 pm

    Really Big News,

    No one except you gives a rip. You remain a hookers best friend.

      Ragspierre in reply to Barry. | April 27, 2018 at 10:46 pm

      Unlike your man-crush, I’ve never lied to a nation. I’ve also never boinked a “hooker”, never cheated on ANY spouse (much less ALL of them), and never paid to suppress information.

      I never had to.

      He has. He’s the “hooker’s” best friend. And you’re a slavish, lying cultist.

    No, Rags, the one that can’t seem to shut up is you.

      Ragspierre in reply to rdm. | April 27, 2018 at 10:43 pm

      But I’m not the one who lied to the American people, or the one who paid off a paramore days before an election to suppress the FACTS of my conduct.

      I don’t have a phalanx of lawyers telling me that vomiting out any-flucking-thing that enters my brains is REALLY bad for any number of reasons, including some possible legal actions.

        But you DO lie. On a consistent basis. And brashly and with much chest beating assure people that anyone who doesn’t agree with your pronouncements from mount Olympus is unworthy.

          Ragspierre in reply to rdm. | April 29, 2018 at 9:02 am

          I make it a matter of principle to never lie.

          Your lie about me lying “constantly” is simple bullshit name-calling.

          It was utterly a non-sequitur, since I never said anything about myself not lying at all, ever.

          You just went into attack mode because you could not defend T-rump. Which is kinda good, since this conduct is indefensible.

The link didn’t even contain a clean written version of the Trump quote. Having said that… I listened to the audio of an embedded video briefly.

I am, aghast. You’re an attorney. Your command of English must be tremendous. Surely you, of all people, understand that “a deal” has a colloquial meaning similar to “a matter” in the English language? And this is your (and Allahpundit’s) basis for saying Trump is a liar about knowledge of the payment?…

    I’m sorry, this keeps happening, that was meant to reply to Ragspierre.

    Ragspierre in reply to JBourque. | April 28, 2018 at 3:02 am

    WTF are you talking about?

      That you are taking “deal” as meaning “the payment to Stormy Daniels” and not “the case of Stormy Daniels”.

      I replayed the audio. “…this crazy Stormy Daniels deal” …If you can’t stop hearing the English language in its lawyer dialect for two seconds to notice how this sounds to normal people, I am profoundly sad for you, Allahpundit, and anyone else taken for a ride by this. You’ve been going up and down the comments gloating about how Trump lied to the nation based on your interpretation of this single word. But, that’s your right.

      Ragspierre in reply to Ragspierre. | April 28, 2018 at 4:44 am

      OK, let’s make a quick stop at Realityville.

      T-rump denied any knowledge of anything “Stormy”. Remember?

      He denied making any payment to Daniels. Recall now?

      Cohen lied about the payment, saying it was his alone. OBVIOUSLY NOT!

      There is now a clear admission that Cohen represented T-rump WRT Daniels. In T-rump’s own words.

      You can pin yourself to delusions. But, that’s your right.

      Duh Donald lied. He lies. He will lie.

        OBVIOUSLY NOT – that is an argument of faith and belief. Of course Trump “admitted” Cohen represented him with regard to Daniels. Cohen named him as a client in a court of law.

        For me to take that as Trump admitting that anything and everything Cohen did was purely at his command is to presume he is guilty.

        No. I don’t play that game. Not for you, not for anyone.

        If Trump is guilty of this and that, through Cohen or otherwise, by all means, find that evidence, try him, convict him and subject him to whatever punishment is sufficient. But a presumption of guilt is not going to sway me. It didn’t sway me with Hillary or anyone else – I had a problem with her actions when evidence suggested they were problematic. And I would be less of a person if I allowed it to sway me here.

          Ragspierre in reply to JBourque. | April 29, 2018 at 8:19 am

          Apart from your flagrant virtue signaling, there’s nothing here I can get a handle on.

          IFFFFF there was an attorney client relationship, Duh Donald controlled EVERY-FLUCKING-THING, or Cohen is an ever MORE stupid “attorney” than his background affirms.

          OF COURSE Duh Donald lied. And Cohen lied. Read up, brother…!!!

        Mac45 in reply to Ragspierre. | April 28, 2018 at 5:57 pm

        Ah yes, Reality. a good place to live.

        As to Trump denying any knowledge of Stormy Daniels, who cares? In the first place, we never totally accept anything that anyone, particularly anyone in a position of power says. Just because the High Muckety Muck tells you that you can fly does not mean that jumping off the cliff is a good idea. This is Reality.

        As to denying that he made any payment to Daniels, there is no proof that this is not accurate. At this point we have no idea how much latitude Cohen had to deal with Daniels. Again, Reality.

        As to Cohen lying about the payment being his money and his idea, again, we have no evidence that this is false. It may have been all Cohen. Or Trump could have known about it and okayed it. Or, Trump could even have provided the funds. At this point we simply do not know. Reality.

        As to the fact that Cohen represented Trump in re Daniels, that was always obvious. However, what is not known is to what extent Trump had knowledge of the particulars of Cohen’s actions. It is not unusual for a personal attorney to simply be given instructions to deal with a problem, without his principle going into detail on how to accomplish this, or even knowing the details after the fact. Reality, again.

        So, what we do know about the Daniels case is that Cohen handled the drafting of a NDG which granted Daniels the sum of $130,000 and indemnified her against legal retaliation by Mr. Trump. Now, a case can be made for the monetary pay-off as either extortion by Daniels or compensation for loss of potential income from giving interviews concerning her relationship with Trump. We still do not know the details of the whole transaction.

        So, until actual evidence is presented, it might be a good idea to refrain from making a firm judgement as to exactly what happened.

          Ragspierre in reply to Mac45. | April 28, 2018 at 10:21 pm

          “It is not unusual for a personal attorney to simply be given instructions to deal with a problem, without his principle going into detail on how to accomplish this, or even knowing the details after the fact. Reality, again.”

          That’s another of your obvious, farcical lies. It is TOTALLY uncommon for an attorney to make or accept ANY offer without explicit approval from the person who controls ALLLLLLL offers…the client.

          It’s a cannon of legal ethics so closely guarded it often leads to disbarment.

          Here, you’re trying to sell the bullshit that Mr. Management was in the dark about…everything.

          You really are a lying moron.

“As to Trump denying any knowledge of Stormy Daniels, who cares?”

Well, we all used to care when it was about Clinton or Baracula.

Some of us actually did…and still do…care. We all understand that sometimes even the very best of our leaders will lie. Sometimes…very rarely…that is in the national interest and part of statecraft.

But that is fundamentally different than living by the lie, and lying in all things great and small, as does Duh Donald.

That is pathology. And supporting a pathological liar is not prudent.

    Milhouse in reply to Ragspierre. | April 30, 2018 at 2:39 am

    “As to Trump denying any knowledge of Stormy Daniels, who cares?”

    Well, we all used to care when it was about Clinton or Baracula.

    No, not all of us cared. I didn’t. Clinton didn’t owe us the truth about his affairs. But he did owe Paula Jones the truth, the whole truth, and nothing but the truth, in response to the questions the judge approved, and within the definition the judge gave, after negotiation with his lawyer, and which he (himself a skilled lawyer) read and said he understood.

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