The federal court in the Southern District of New York is continuing today the hearing on the objections of Donald Trump’s personal attorney Michael Cohen regarding records seized from his law office and home. For the background and court pleadings, please see the prior post, Trump attorney Michael Cohen goes to Court to get back seized records.

Last night we reported that Trump’s attorney’s had filed a Letter Motion objecting to the feds doing a privilege review of the seized materials, Trump court filing in Michael Cohen case: Objects to DOJ/FBI “taint team” deciding what is attorney-client privileged.

Among other things, Trump argued that his legal team should be provided a copy of the seized materials so that they can do the first privilege review:

The President objects to the government’s proposal to use a “taint team” of prosecutors from the very Office that is investigating this matter to conduct the initial privilege review of documents seized from the President’s personal attorney, Michael D. Cohen. The cases upon which the government relies do not authorize this extraordinary measure, and, to our knowledge, no court in this Circuit has ever forced a privilege-holder, over his objection, to rely on government lawyers to protect his attorney-client privilege as to materials that were seized from his own lawyer’s office.

For the reasons detailed below, the Court should enter an order enjoining the government from proceeding with any review of the seized materials, and directing the government to provide a copy of the seized materials to Mr. Cohen so that our firm and the President may review for privilege those seized documents that relate to him.

This morning Cohen’s lawyers made an additional filing (pdf.)(full embed at bottom of post)

The main legal thrust of Cohen’s filing is to argue for the appointment of a Special Master to protect not only attorney-client materials and the identity of clients, but also to sort out what records grabbed even are responsive to the search warrant.

As the Court is surely aware, there is a growing public debate about whether criminal and congressional investigations by the government are being undertaken impartially, free of any political bias or partisan motivation. It is in this climate that the Government executed an unprecedented search warrant – instead of using its less onerous subpoena power – upon the personal attorney of the President of the United States. In the process, the Government seized more than a dozen electronic devices and other items that include documents and data regarding topics and issues that have nothing to do with the probable cause upon which the search warrant was granted in the first place.

Mr. Cohen’s application for a temporary restraining order, preliminary injunction, and the appointment of a Special Master to conduct a review of materials seized by the Government for both responsiveness and privilege should be granted because, as described below, it is merited under existing Second Circuit case law. But, just as importantly, Mr. Cohen’s application should be granted so that even the appearance of impropriety is avoided, by appointing a Special Master to conduct the review of Mr. Cohen’s data, including any documents relating to communications with the President of the United States covered by the attorney-client privilege. The choice here is between allowing the Government to make an end run around the Fourth Amendment by scooping up and viewing all of the communications seized in the search of a lawyer’s office (in this case, all of the documents and data of the President’s personal attorney) regardless of whether the documents seized were the subject of the judge’s original probable cause determination, or appointing a neutral third party to conduct that review. If the government can obtain a search warrant for particular items but then seize and review everything in an attorney’s office, the protections of the Fourth Amendment are meaningless. We therefore respectfully request that the Court either allow Mr. Cohen’s counsel and counsel for the privilege holders to conduct the initial review, or appoint an independent third party – a Special Master – to do so.

Cohen went on to describe, in response to a court request Friday, his legal practice. The government had argued that Cohen effectively didn’t practice law. Cohen’s lawyers wrote:

In terms of relevant names to be submitted for a privilege review, the Court will recall that although almost all of the discussion in court on Friday, April 13, 2018, related to Mr. Cohen’s clients, our application also covers law firms representing and providing advice as well as work-product to Mr. Cohen. The relevant law firms and attorneys that have advised and provided work-product to Mr. Cohen and may be contained in documents and data seized in relation to the search warrants at issue here include: [list]

From approximately 2007 to January 2017, Mr. Cohen worked at the Trump Organization in the role of Executive Vice President and Special Counsel to Donald J. Trump. In that capacity, Mr. Cohen served as legal counsel to the Trump Organization, Donald J. Trump. Mr. Cohen worked predominantly on real estate, contract, and litigation matters for the Trump Organization.

In the period of 2017 to 2018, Mr. Cohen maintained a solo law practice. There were at least ten clients during this period. Mr. Cohen’s role varied for these clients. For seven clients the work appears to be providing strategic advice and business consulting, for which privilege would not attach. In any event, none of these seven client files are likely to have any responsive information on the issues sought in Attachment A of the search warrant. If necessary, we would be willing to provide the names of the business clients if a Special Master is appointed so the Special Master can determine responsiveness.

For at least three other clients that we have identified in the period of 2017 to 2018, the work was more direct legal advice or dispute resolution–more traditional legal tasks. All of these clients are individuals. One of these legal clients is Donald J. Trump. Another legal client is Elliot Broidy. The third legal client directed Mr. Cohen to not to reveal the identity publicly. Upon information and belief, the unnamed legal client’s matters are not responsive to any matter covered by Attachment A of the search warrants.

Cohen’s lawyers then sum up, after a discussion of various legal precedent, with a request for a Special Master:

As detailed herein, we believe that the most proper and practical solution to this unprecedented question and attendant circumstances is for this Court to appoint a Special Master. First and foremost, the appointment of a Special Master will provide for the fair administration of justice here and avoid even a hint of impropriety here in the review of Mr. Cohen’s data and documents. Second, the appointment of a Special Master will protect the integrity of the Government’s investigation from the toxic partisan politics of the day and attacks on the impartiality of the Justice Department and the USAO. Frankly, we hoped that the USAO would join this application and work with us to devise an expedient set of rules and procedures for a Special Master’s review of the seized materials that also takes into account the interests of the various privilege holders, as described in detail in the letter submitted on behalf of Intervenor, Donald J. Trump, on April 15, 2018. Third, the appointment of a Special Master will allow Mr. Cohen to observe his ethical obligations to his clients as well as protect the identity of his clients by providing them, when necessary, to the Special Master on an in camera basis.

We will update this post, or have a new post, depending what happens at today’s hearing.

UPDATES:

I think the internet is going to break. The judge required Cohen’s counsel to reveal the unnamed third client of Cohen. It is Sean Hannity.

While there is obvious joy among #TheResistance about Hannity being a client of Cohen, this goes to show the damage the Mueller’s tactics have done, via the outsourced seizure of Cohen’s law office files. Clients, including but not limited to Hannity, who consulted Cohen with the expectation of privacy both as to the content and fact of the legal advice, have had their privacy violated. It may not be a violation of the attorney-client privilege yet, because the substance of the advice has not been revealed, but the fact of representation is a secret an attorney is obligated to maintain in the normal course.

Contrary to what a lot of reporters are tweeting, it doesn’t matter that Hannity never retained Cohen in a matter, signed a retainer, or paid attorney’s fees. He still was, for legal purposes, a client if he consulted even informally for legal advice.

Court Hearing Over

The Court hearing now is over. From tweets by reporters in the courtroom, it appears that the feds are not currently reviewing the materials pending a court ruling, so the request for a Temporary Restraining Order prohibiting them from doing that was denied as moot. The request for a preliminary injunction was not ruled upon. The judge seems to be considering appointing a Special Master, but hasn’t ruled yet. The parties were asked to come up with names in case she appoints a Special Master.

[This post and title were updated multiple times]

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Michael Cohen v. USA – Cohen Letter Re Seizure of Electronic Devices Etc. 4-16-2018 by Legal Insurrection on Scribd