The court proceedings regarding the seizure of materials from the law office of Michael Cohen ended yesterday without a formal ruling on the substance of how the case will proceed as to review of seized materials. The issue is whether a so-called “taint team” from DOJ/FBI will review the records first, or whether there will be a Special Master.

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.)(emphasis added):

… with respect to the timeline for production of seized material, the Government expects to begin a rolling production by Friday, April 27, 2018, and to complete the production by on or about May 11, 2018,1 with the possible exception of the content of certain telephones. These dates may be subject to change primarily for the following reasons: (1) because law enforcement has voluntarily refrained from reviewing any of the seized material, including seized electronic devices such as computers and phones, the volume of electronic material on the devices is presently unknown; and (2) it is particularly difficult with respect to telephones to estimate the length of time the downloading process will take. We expect to know within a week whether these or any other issues will materially change the expected production schedule, and will promptly advise the Court and Cohen if such a change is expected. In light of the foregoing, the parties jointly request that the Court schedule a status conference on May 25, 2018 – i.e., ten business days after the currently predicted production date.

1 In addition to providing the materials to Cohen’s counsel via an electronic database, the Government has agreed to also provide the material as separate load files, so that Cohen’s counsel may utilize its own database, should they so choose. This means that Cohen’s counsel should have access to most of these materials well before May 11.

The judge was quoted as saying at the April 16, 2018 hearing that she had “faith” in the U.S. Attorney’s Office:

“I have faith in the Southern District U.S. Attorney’s Office,” she said. “Their integrity is unimpeachable.”

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.

Here was Hannity’s statement in response to a media frenzy and wild speculation that he had a Storm-Daniels-type problem that Cohen fixed for him:

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.

On Tuesday, April 17, 2018, not at the time knowing of the NY Times/CNN role or the initial ruling to keep Hannity’s identity under seal, I explained on the John Gibson Radio Show why this public disclosure was damaging to public confidence in attorney-client confidentiality,

The audio and a full-transcript of my segment are below.

Gibson: What do you think is going on here, if Sean Hannity calls up Michael Cohen and says “hey, I wanted to ask you about some real estate thing I’m thinking about getting into,” does that make Sean Hannity a client of Michael Cohen?

Jacobson: In a legal ethics sense, yes. Whether it makes him a ‘client’ in the way we sometimes think about it, it doesn’t matter whether he signed a retainer, whether he has retained him for a particular project, whether he’s paid him any money. Once a client consults, once a person consults with an attorney for the purpose of obtaining legal advice, that now becomes an attorney-client relationship. So yes, Sean Hannity, if he sought out Michael Cohen’s advice, legal advice on real estate — and I would distinguish that from business advice. If he calls up Michael Cohen and says, “hey, do you think this property is valued fairly,” that’s not seeking legal advice. But if he asked him legal questions and gets legal advice, for the purposes of attorney-client privilege that is an attorney-client relationship even if there’s no money exchanged, no formal retention.

Gibson: So if there is an attorney-client relationship, and Hannity has essentially nothing to do with the purpose of the investigation for seizing the records of Michael Cohen’s office and home and so forth, should his name have been revealed? And should his, does he have attorney-client privilege with whatever it is Michael Cohen’s got that involves his name.

Jacobson: The easier answer is that whatever communications he had with Michael Cohen [about legal advice] are privileged, they are attorney-client privilege communications. They should be protected.

Whether a client’s identity, the name of the client, is protected is a much trickier matter. In general, lawyers are supposed to maintain that as what’s called a “secret.” Not attorney-client privilege, but they’re supposed to maintain client identity as a secret unless the client says that you can use my name. That’s in the normal course.

Once you get to court though, whether a court should compel that, is a different question, and there the law, I think, for the most part is that the client identity, absent some other factor, is not in and of itself privileged, and is not in and of itself protected. And that’s why, I didn’t hear the arguments in court and none of the people tweeting from the courtroom really gave a very good elaboration of what the arguments are, but I assume that that was the judge’s finding. That absent some other circumstance, and there might be circumstances, there have been some oddball cases where revealing the identity of the client may in and of itself reveal privileged information. But that’s not the case here. So generally speaking, the identity is not legally protected in court.

That’s a very different question, though, in my mind, as to whether this whole way the prosecutors went about it has done damage to the public perception of attorney-client relationships. Because I think the public would generally assume that if I’m going to consult you privately, that’s never going to be disclosed to anybody, that I even did that. And so I think damage has been done here to the attorney-client relationship, even if the court might legally have been correct in compelling it.

Gibson: Okay, there’s this other question. Now the government seized Michael Cohen’s records, and there’s going to be some procedure whereby, well what the government wanted was to appoint a special FBI agent to look over stuff, determine what is covered under attorney-client privilege, and what is not. Turn over to the government what is not, keep private what is. But that’s the government looking at the stuff anyway. Is there really a wall that you can count on?

Jacobson: Well, I don’t think there is. One of the most troubling things that was reported that the judge said in court yesterday, was that she trusts the Southern District of New York U.S. Attorney’s Office. Well, that’s not supposed to be the way we operate. Whether you trust the prosecutors or you don’t, you need protection for attorney-client information. Sean Hannity, as far as we know, has nothing to do with any of the potential crimes that Michael Cohen’s being investigated for.  His confidential material should not be read by anybody.

I think that allowing a so-called, they call it a “taint team,” that the FBI will insert a special team, or the U.S. Attorney’s Office, a special team of people who have no role in the investigation, their only role is to supposedly objectively come in and review this material. Why should they get to read Sean Hannity’s communications with Michael Cohen? They shouldn’t. I think that’s one of the objections, that by allowing a search warrant of an entire law office file — now there’s a dispute how much Michael Cohen was really practicing law, but clearly when it comes to Sean Hannity it appears he was. Why should anybody get to see that, whether they’re a “taint team” or they’re anybody else?

I don’t think the court has instituted those protections just because, by having a group from the U.S. Attorney’s office review the material. That damage is done, because now people will be of the perception, I think correctly, that what they tell their attorney really isn’t completely private, that there might someday be some other third party who’s going to look it over, and maybe they’ll maintain the confidentiality, maybe they won’t, and the judge is going to trust them to do it.

So I think it’s a pretty egregious situation, and it shows what happens when judge’s get too comfortable with the people who are regularly in their courtroom. Judge Kimba Wood has a fine reputation, but the fact of the matter is the attorneys from the Southern District U.S. Attorney’s Office are probably in front of her virtually every day. And the judge’s get comfortable with people. She would never, probably, say well I trust somebody else to do this. She shouldn’t be trusting anybody to do anything. She should be insisting on procedures that protect people like Sean Hannity from having their confidential attorney-client communications revealed to anybody.

So really, what I think should have happened, in this instance of a law office having its records seized, she should have appointed a Special Master, somebody who operates as an extension of the court, and that that person, not the U.S. Attorney’s Office, that court operative would review the material in the first instance to decide whether it even has anything to do with the criminal investigation. Only when you’ve made that decision you get to the next question, is it privileged or not.

So I think what has happened is really pretty terrible, it’s what has happened with the pursuit of Donald Trump. Because all of this is about Donald Trump. This was a referral from Robert Mueller’s office, he essentially outsourced the investigation of Trump’s attorney to the U.S. Attorney’s Office. This is all an attempt to somehow get to Trump, and I think the Court should have been much more protective of people like Sean Hannity’s rights.”

After the interview I saw an Op-Ed by retired Judge and former Attorney General Michael Mukasey, which proves my point that no trust or confidence in the prosecutors by a judge should be driving the procedure to be used. The Op-Ed relates problems in prosecutions headed up by Robert Mueller and James Comey, prosecutions that were completely botched and targeted innocent people, Trump, Cohen and Attorney-Client Privilege:

Agents typically do that by sending in a “filter team,” whose members have no contact with those involved in the investigation. That ensures that information that should not be examined—whether privileged or not—does not seep into, or “taint,” the investigation.
That’s the theory. Its success depends on the skill and honor of the filter team, and even in the best case it doesn’t prevent some government personnel from examining private records that are none of the government’s business.

The process risks damaging the significant public interest that led to the creation of the privilege in the first place. Is it worth the reward? One would think that would depend at least in part on the seriousness of the crimes under investigation.

* * *

After anthrax spores killed five people, infected 17 others, and showed up in envelopes mailed to U.S. senators and media organizations in 2001, the current special counsel, then director of the Federal Bureau of Investigation, spent years chasing and destroying the reputation of a microbiologist named Steven Hatfill, zealous in the belief that Mr. Hatfill was the guilty party. Another zealot, James Comey, then deputy attorney general, said he was “absolutely certain” no mistake had been made.

After Mr. Hatfill was exonerated—he received more than $5.5 million in damages from the government—Mr. Mueller then decided that another microbiologist, Bruce Ivins, was the culprit. When Ivins committed suicide, Mr. Mueller pronounced the case closed. A subsequent investigation by the National Academy of Sciences suggests Ivins too was innocent.

Mr. Mueller is not a bad man, nor is Mr. Comey. It’s just that both show particular confidence when making mistakes, which makes one grateful for safeguards like the attorney-client privilege.

The same problems were seen in the Southern District of New York when Preet Bhahara, now an anti-Trump Twitter troll, was the U.S. Attorney, Preet Bharara’s victories keep melting away:

Among the most frequent — and, at least according to those on the left, credible — critics of President Trump has been Preet Bharara, who was the most powerful federal prosecutor in the country until Trump fired him on March 10, along with 45 of his fellow US attorneys.

That credibility took a hit Thursday, when an appeals court vacated the conviction of former Assembly Speaker Sheldon Silver. Silver’s conviction was supposed to be a major feather in Bharara’s cap. Now his record of having convictions overturned will, deservedly, get more scrutiny….

In several cases, Bharara expanded the definition of misappropriated information so much that it appeared — at least according to the appellate courts — to criminalize information that the trader might not have known was stolen in the first place.

With that, a slew of insider-trading convictions were overturned.

Bharara, now a private citizen and law professor at NYU, would no doubt say I’m cherry-picking his duds and that his overall record as a prosecutor is strong. (He declined to comment.) But I’d say the case against Silver (which prosecutors will retry) and the overturned insider-trading convictions are pretty big cherries.

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.


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