Govt: “The searches are the result of a months-long investigation into Cohen, and seek evidence of crimes, many of which have nothing to do with his work as an attorney, but rather relate to Cohen’s own business dealings.”
Trump personal attorney Michael Cohen has filed in federal court in the Southern District of New York for a Temporary Restraining Order regarding the records and evidence seized by the government when it executed a search warrant on Cohen’s offices and homes on April 9, 2018.
According to news reports, a hearing started this morning and is ongoing this afternoon before Judge Kimba Wood.
While the search warrant is not public, the NY Times describes what reportedly was seized:
The warrant sought all documents, including emails between Mr. Cohen and Mr. Trump, related to Mr. Cohen’s efforts to suppress negative publicity ahead of the 2016 election.
Communications between lawyers and their clients are normally off limits to prosecutors but there are exceptions, including when the materials are considered part of an ongoing crime.
The raid on Mr. Cohen surprised and angered the president, who has been frustrated with the ongoing special counsel investigation into Russia’s 2016 election interference, the Kremlin’s possible coordination with Trump associates and whether the president has been deliberately trying to obstruct those inquiries. On Monday, Mr. Trump called the raid an “attack on our country in a true sense.”
Federal agents in New York were looking for information about Karen McDougal, a former Playboy model who claims she had a nearly yearlong affair with Mr. Trump shortly after the birth of his youngest son in 2006. American Media Inc., which owns the National Enquirer, paid Ms. McDougal $150,000. The chief executive of America Media Inc. is a friend of Mr. Trump’s.
Agents were also searching Mr. Cohen’s office and hotel room for information related to Stephanie Clifford, better known as Stormy Daniels, a pornographic film actress. Ms. Clifford has said she had sex with Mr. Trump while he was married. Mr. Cohen has acknowledged that he paid Ms. Clifford $130,000 as part of a nondisclosure agreement to secure her silence days before the 2016 presidential election. Mr. Trump recently told reporters he knew nothing about the agreement.
The seized records also include communications between Mr. Trump and Mr. Cohen, who joined Mr. Trump’s company, the Trump Organization, in 2006, which would most likely require a special team of agents to review because conversations between lawyers and clients are protected from scrutiny in most instances.
Donald Trump is listed as an “intervenor” in the case on the ground that he has an interest in the proceedings.
Lawyer Joanna Hendon appeared on Trump’s behalf at a hearing in Manhattan alongside attorneys for Cohen, saying the president “has an acute interest in this matter.”
She added: “What’s at stake? The viability of this prosecution. It has to be done right. He is the president of the United States.”
Hendon cited the “exceptional nature of my client” as she sought to delay the court proceedings until Monday.
“This is of utmost concern to him,” she said. “I think the public comes a close second. I think anyone who’s ever hired a lawyer is a close third.”
The motion papers filed by Cohen are not yet in the PACER electronic docket system, but the government’s
Memorandum in Opposition (pdf.)(full embed at bottom of post) sheds light on what Cohen is seeking and the basis for the government’s opposition.
UPDATE: The motion papers are now available:
According to the government’s opposition:
Cohen now seeks the extraordinary remedy of preventing the United States Attorney’s Office for the Southern District of New York (“USAO-SDNY”) from reviewing lawfully obtained evidence of Cohen’s alleged criminal conduct, and asks that, instead, defense counsel be permitted to review the materials in the first instance and produce to the USAO-SDNY what defense counsel deems to be “responsive, non-privileged items.” This request is unprecedented and is not supported by case law in this Circuit, which has repeatedly found that the government’s use of a filter team appropriately protects applicable privileges. Cohen’s alternative request for the appointment of a special master should likewise be denied. It is premised on a wholly distinguishable case involving a search of the law offices of a practicing criminal defense attorney, who shared an office with other criminal defense attorneys, in the district in which the attorney was being prosecuted. Here, Cohen is not a criminal defense attorney, has no cases with the USAO-SDNY, and is being investigated for criminal conduct that largely centers on his personal business dealings. Based on information gathered in the investigation to date, the USAO-SDNY and FBI have reason to believe that Cohen has exceedingly few clients and a low volume of potentially privileged communications.
Moreover, although Cohen’s claims are founded on his expressed concern that attorney-client privilege will be undermined, he nevertheless asks for far broader relief: He asks to also be the first to make the determination of whether a document is responsive to the search warrant. That request for relief, which bears no relation to the claimed justification, belies the true intent of his motion: To delay the case and deprive the USAO-SDNY of evidence to which it is entitled
The prosecutors say that DOJ guidelines on handling potentially privileged documents will be followed, and that a special team that is not part of the investigation will review the documents for privilege.
The prosecutors also confirm there was a Mueller referral, but insist that the ongoing grand jury investigation is independent of Mueller:
These searches were carried out as part of an ongoing grand jury investigation being conducted by the USAO-SDNY and the FBI.1
1 Although Cohen accurately states that the Special Counsel’s Office (“SCO”) referred this investigation to the USAO-SDNY, the investigation has proceeded independent from the SCO’s investigation. Cohen’s speculation, see Br. at 10, that the SCO drafted the search warrants is unfounded. The date in the bottom corner of the attachments is the date that the USAO-SDNY’s standard form search warrant rider was most recently updated for use by the office.
Prosecutors argue that the risk to attorney-client privilege is low because the focus is on Cohen’s own business dealings:
Although Cohen is an attorney, he also has several other business interests and sources of income. The searches are the result of a months-long investigation into Cohen, and seek evidence of crimes, many of which have nothing to do with his work as an attorney, but rather relate to Cohen’s own business dealings. As set forth below, unlike a search of a traditional law office, the information gathered thus far in the investigation suggests that the overwhelming majority of evidence seized during the searches will not be privileged material, but rather will relate to Cohen’s business dealings.
The prosecutors also confirm that the payment to “Stormy Daniels” is part of the search warrant:
First, Cohen’s claim that he has confidential communications with multiple clients appears to be exaggerated. For example, Cohen has told at least one witness that he has only client – President Trump.5
5 And there is reason to doubt that even communications with his only publicly identified client regarding payments to Stephanie Clifford, who is also known as Stormy Daniels, would be protected by attorney-client privilege. Among other things, President Trump has publicly denied knowing that Cohen paid Clifford, and suggested to reporters that they had to “ask Michael” about the payment. See Kevin Liptak, Trump Says He Didn’t Know About Stormy Daniels Payment, CNN.com (Apr. 6, 2018), https://www.cnn.com/2018/04/05/politics/donald-trumpstormy-daniels/index.html.
Parts of the government brief are redacted:
Michael Cohen v. USA – Govt Brief In Opposition to TRO
The government goes on to argue that there is no legal authority for the type of relief Cohen is seeking.
We will update this post as more is reported about the Court hearing.
UPDATE: The hearing will continue on Monday.
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