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Trump attorney Michael Cohen goes to Court to get back seized records

Trump attorney Michael Cohen goes to Court to get back seized records

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.”

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

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:

Motion for TRO and Preliminary Injunction (pdf.)

Memo of Law in Support of Motion for TRO (pdf.)

Declaration of Todd Harrison in Support of Motion for TRO (pdf.)

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.

———————

Michael Cohen v. USA – Govt Brief in Opposition to TRO by Legal Insurrection on Scribd

 

[Featured Image via Daily Mail video]

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Comments

The seizing by search warrant of privileged Attorney Client information is troubling. The act of perusing through such information (even by a Court Master) in search of a crime is unacceptable.

    heyjoojoo in reply to counsel. | April 13, 2018 at 3:47 pm

    I keep hearing people say this and yet they have accomplished such a deed. If this is the case, how come we’re not hearing about any legal retort or some counsel countering this? It’s as if everything is being done right.

      counsel in reply to heyjoojoo. | April 13, 2018 at 3:53 pm

      It is far easier for a prosecutor to get a search warrant issued than it is to get the fruits of that warrant suppressed. The later only rarely happens.

        myiq2xu in reply to counsel. | April 13, 2018 at 4:43 pm

        Because you basically have to prove the cop lied or withheld exculpatory evidence, and then convince a judge that with all the corrections made to the warrant affidavit no reasonable judge would have issued the warrant.

        I did it once. I still get nervous driving thru the town that cop works in.

        BTW – the ADA dumped the case when it became obvious I would win my motion to suppress, so officially it didn’t happen (and the cop isn’t officially a lying sh*tbag.)

          notamemberofanyorganizedpolicital in reply to myiq2xu. | April 13, 2018 at 7:20 pm

          “BIG GOVT. TELL BIG LIE.”

          notamemberofanyorganizedpolicital in reply to myiq2xu. | April 13, 2018 at 7:48 pm

          “The FBI/DOJ officials who carried out the raid will leak the content to media to damage POTUS & engineer narratives for election(s). That was the intent of the raid.”

          “The raid on Michael Cohen’s home and office was gov. directed political opposition research.”

          ” You can call it a soft-coup, or you can call it politicization of the DOJ and FBI, but the end result is the same – the intentional effort to manipulate, influence, and ultimately subvert an election for the presidency of the United States.

          It is an inarguable reality that ideologues within the U.S. Department of Justice and Federal Bureau of Investigation used their positions to conduct a political operation against the candidacy of President Trump.”

          https://theconservativetreehouse.com/2018/04/12/the-doj-and-fbi-small-group-motive-behind-the-raid-on-michael-cohen/

          notamemberofanyorganizedpolicital in reply to myiq2xu. | April 13, 2018 at 8:13 pm

          UH OH!

          “Ex-Obama Campaign Director Drops Bombshell Claim on Facebook: ‘They Were on Our Side'”

          “A former Obama campaign official is claiming that Facebook knowingly allowed them to mine massive amounts of Facebook data — more than they would’ve allowed someone else to do — because they were supportive of the campaign.

          “In a Sunday tweet thread, Carol Davidsen, former director of integration and media analytics for Obama for America, said the 2012 campaign led Facebook to “suck out the whole social graph” and target potential voters. They would then use that data to do things like append their email lists.

          “When Facebook found out what they were doing, they were “surprised,” she said. But she also claimed they didn’t stop them once they found out:

          “They came to office in the days following election recruiting & were very candid that they allowed us to do things they wouldn’t have allowed someone else to do because they were on our side,” Davidsen tweeted.

          https://ijr.com/2018/03/1077083-ex-obama-campaign-director-fb/

          counsel in reply to myiq2xu. | April 14, 2018 at 10:35 am

          That’s impressive.

      The Packetman in reply to heyjoojoo. | April 13, 2018 at 4:19 pm

      “how come we’re not hearing about any legal retort or some counsel countering this?”

      You mean like this?

      http://dailycaller.com/2018/04/09/dershowitz-cohen-raid-dangerous/

    fishstick in reply to counsel. | April 13, 2018 at 5:14 pm

    Basically the whole fiasco here makes no sense from a legal standpoint.

    Because what happened is the exact opposite of what should have happened legally.

    Should of there first been a court hearing to question this level of warrant in the first place?

    Seems like any first year law student or anyone with a conscious would see conflicting interest.

    I doubt the head prosecutor here gave any sort of compelling narrative of guilt to show the judge that this breach had any merit at all to uncover any information regarding possible wrong doing by Cohen in his business ventures.

    I could see a case built upon the notion that the persons of interest were being deceitful, destroying evidence, refusing to cooperate, and so forth…

    But the Trump camp (including Cohen) had been cooperating with the feds for over a year now giving them practically everything they asked for.

    So what was the story they told for the judge to throw away all standard procedure?

    It is not just the Deputy AG at fault here, these courts are out of control.

    If Sessions won’t open up an independent investigation to question all these backdoor tactics and (more importantly) the motives behind Mueller’s special counsel, then he has to be canned.

    He should have been fired a year ago.

      notamemberofanyorganizedpolicital in reply to fishstick. | April 13, 2018 at 7:21 pm

      In any “normal” court of law all the illegally seized “evidence” (HA!) would have to be thrown out of court, and the jurors told to ignore it!

      oldgoat36 in reply to fishstick. | April 13, 2018 at 8:03 pm

      They hand picked a judge who has ties with Obama and Hillary, got the OK from Obama acolyte Rosenstein. When you have SJW judges who can be easily convinced to issue a warrant, and Mueller pushing this via a surrogate using things his investigation “picked up”, it probably was pretty darn easy to do, so long as they had enough boxes checked off, and the right judge who wouldn’t question the validity, as once this was done it can’t be put back to right.

      I am just wondering how long it will take for the leaks to start coming from this highly questionable move. The deep state doesn’t care though, it’s all about Gestapo tactics meant to bring about a coup, so the ends justifies the means with these people.

Kimba Wood … we’ve heard that name before. I recall Billy Jeff considered her for Attorney General, but she had too much baggage for even him to ignore.

    walls in reply to tom_swift. | April 13, 2018 at 3:47 pm

    Everything is negotiable with Billy Jeff …. there are ways. I mean, everything has a price.

    guyjones in reply to tom_swift. | April 13, 2018 at 4:06 pm

    If memory serves, I believe that Judge Wood ran into trouble for having hired an undocumented Dumb-o-crat — I mean, an illegal alien — as a nanny.

This may have intended consequences of scaring any potential counsel from joining the Trump defense team. If you join the team, be prepared to go under the microscope. As Stalin’s head of the secret police [hmmm ….. secret FISA court anyone?] said, “show me the man, and I’ll show you the crime”.

    Barry in reply to walls. | April 13, 2018 at 6:44 pm

    Precisely.

    The Marxist government officials are making sure that should you work for / support Trump you will suffer, thereby suppressing people from working in the Trump administration or on his personal account.

The rabid anti-Trump Left has gone from alleging “collusion” with Russia (which allegations were predicated on, incredibly, material contrived and paid for as part of a crone Clinton campaign dirty tricks op) to now scraping the bottom of the tabloid news barrel for something — anything — to nail POTUS to the wall with.

Total farce and theatrics, all underpinned by the Dumb-o-crats’ increasingly unhinged histrionics and totalitarian tactics.

    notamemberofanyorganizedpolicital in reply to guyjones. | April 13, 2018 at 7:28 pm

    The lying’ MSM, Leftists, Progressives, Democrats, and Never Trumpers still have not learned that doing their evil deeds is causing them to dig their own graves they’ll be buried in.

    “But these, like irrational animals, creatures of instinct, born to be caught and killed, reviling in matters of which they are ignorant, will be destroyed in the same destruction with them, suffering wrong for their wrongdoing. They count it pleasure to revel in the daytime. They are blots and blemishes, reveling in their dissipation, carousing with you. They have eyes full of adultery, insatiable for sin. They entice unsteady souls. They have hearts trained in greed. Accursed children! Forsaking the right way they have gone astray; they have followed the way of Balaam, the son of Beor, who loved gain from wrongdoing, but was rebuked for his own transgression; a dumb ass spoke with human voice and restrained the prophet’s madness. These are waterless springs and mists driven by a storm; for them the nether gloom of darkness has been reserved” (2 Peter 2:12-17 RSV)

Subotai Bahadur | April 13, 2018 at 4:07 pm

Left us say, for the sake of argument, that the court says that the FBI, et. al. screwed up big time. What is the record of the FBI, DOJ, etc. on obeying court orders, subpoenas, etc. that they do not want to?

more effort than they put into fast and furious and iran money flow.

Even if Cohen gets the material back from the feds, it is already too late. The leaks have started.

https://theconservativetreehouse.com/2018/04/13/another-justice-department-political-leak-as-a-result-of-michael-cohen-office-raid/

This was never a raid to obtain evidence of a crime. If the feds find such evidence, good. But it was just a means to get embarrassing information to be used against Trump and his associates through leaks. The weaponization of the federal government continues unabated. Be afraid. Be very afraid.

    assemblerhead in reply to Mac45. | April 13, 2018 at 5:36 pm

    The sooner they completely violate Attorney-Client privilege, the sooner the SC probe gets shut down.

    notamemberofanyorganizedpolicital in reply to Mac45. | April 13, 2018 at 7:31 pm

    “Sticks and Stones may break my bones, but embarrassing information will never hurt me.”

    Just ask Obama!

inspectorudy | April 13, 2018 at 5:06 pm

There is something else going on here. The ex-head of the FEC has already stated that the porn payoff would never be considered a political expenditure. He explained the things that could be used or declared a political illegality or what items could be considered illegal but a payoff to the porn star was not among them. He also said that they would never have broken down a person’s door or raided an office to get the evidence. It just doesn’t rise to that level. That means that this is all about Trump through Cohen. I just hope the federal judge that Cohen is before knows what is going on here.

assemblerhead | April 13, 2018 at 5:32 pm

Does anyone know witch Judge approved the warrant?

Does anyone know witch D.A. submitted the warrant for approval?

The MSM is reporting that both are Trump appointees. I would like to know the truth.

——-

Is this correct?

U.S. District Court : Judge Kimba Wood ( Reagan Appointee )

The leaks have already started.

WSJ just published a story about how Cohen authorized a secret payment to a woman to keep quiet about having the baby of a prominent donor.

The FBI is just a fucking joke.

Raid the ACLU or Planned Parenthood and I’ll bet the screams of the lunatic left will be heard past Pluto.

The DOJ has already leaked that Cohen arranged a payoff to a pregnant hooker by some GOP big wig. The payoff is legal, the leak of the information by the DOJ is absolutely illegal.
There is simply no way around it. The FBI/DOJ are corrupt to their very core.

    MarkSmith in reply to puhiawa. | April 14, 2018 at 8:54 am

    Time Session and Wray gets some balls and fires a whole lot of people like everyone in the New York Southern District.

My ultra-liberal friends are just salivating over the prospect that Cohen kept tape recordings of conversations with ALL clients, not just Trump. Their everlasting hope, after all the “bombshell” disappointments, is that the tapes will have incriminating evidence of something criminally actionable. Finally, they believe, Trumps days are numbered because of the alleged criminality of Cohen.

Did Cohen go to Prague or not? He has stated on multiple occasions “I have never been to Prague.” Previously, the DOJ and FBI thought he had as there was a man named Cohen with the same birth year who visited Prague about the time the Steele dossier claimed Trump’s lawyer privately met with an agent for the Ruskies. Further investigation concluded that the man was not Cohen.

Look, if it can be conclusively proved beyond a reasonable doubt that Cohen was in Prague despite his denials, the worm is going to turn. The breathless media will be able to claim that the entire Steele dossier has been validated and that Trump colluded with the Ruskies.

    Edward in reply to Redneck Law. | April 16, 2018 at 2:36 pm

    The argument goes that he went to Europe and the Schengen agreement allowed him to travel from other European countries to Prague without getting his US Passport stamped. That a person can freely travel between Schengen countries is true, and would be a valid point if Cohen had been in another European country (which was a signatory to Schengen) at a time sufficiently close to the time alleged for the Prague trip.

    But Buzzfeed posted scans of Cohen’s US Passport pages (leaving out only his personal data pages) which (IIRC) showed his entry and exit visa stamps for two trips to Europe, one to Italy in early spring and return, and one to Britain in the fall and return. Unfortunately for the story line, those times aren’t anywhere near the proper time for the alleged Prague trip.

    So no, Cohen didn’t make an appearance in Prague at any time and that is what his passport shows. I guess now the Left and Never Trumpers will have him parachuting in and being exfiltrated by submarine, or some such lunacy.

Phil Salvarado | April 14, 2018 at 10:31 am

I believe the expression is: the fix is in.

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