Special Master in Michael Cohen case finds 162 privileged docs in first batch seized by feds
If 162 privileged documents were seized from a news organization, media would be outraged — yet news coverage portrays the government as being vindicated.
The Special Master appointed by the federal court to review claims of privilege in documents seized by the feds from Michael Cohen has issued her first set of recommendations (pdf.).
The Special Master agreed with Cohen and/or intervenor Trump that 162 documents were privileged, and another 10 “Highly Personal”:
1. Contents of Eight Boxes of Hard Copy Materials:
Out of 639 total items consisting of 12,543 pages, the Special Master agrees with the
Plaintiff and/or Intervenors and finds that 14 items are Privileged and/or Partially Privileged.
The Special Master also finds that 3 items are not privileged.2. Contents of Two Phones and an iPad:
Out of 291,770 total items, the Special Master agrees with the Plaintiff and/or Intervenors
and finds that 148 items are Privileged and/or Partially Privileged and that 7 items are Highly
Personal.
Based on the wording of the recommendation, it appears that the Special Master upheld the challenges in all but three cases. So Cohen and/or Trump’s claims of privilege were upheld in 162 of 165 challenges.
These recommendations now go to the Judge.
There is a lot we don’t know about the challenges and recommendations. For example, of the 12,543 pages in the eight boxes, we don’t know how many of those pages were consumed by the 14 privileged documents; a document obviously could be a page, or hundreds of pages. As to the two phones and iPad, how many of the 291,770 “items” were system and other non-substantive files, and how many were substantive files; so we don’t know what percentage of the substantive items were privileged.
162 privileged and 10 “Highly Personal” files is very substantial, particularly keeping in mind this is just the first batch of documents reviewed from a much larger group of electronic records.
That means the federal government, but for Cohen’s lawsuit, would have been able to review and potentially use a total of 172 documents that the federal government never should have seen.
If 162 privileged documents were seized from a news organization, you better believe the media would be outraged.
Yet to look at the headlines, news organizations are portraying the recommendations as vindicating the government:
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So… when are they going to be leaked? Note that Rush pointed out the ONLY document NOT leaked is the IG’s report making its rounds through Justice for comment.
I would suggest that the IG report is not making the rounds through DOJ for comment, but rather for redaction and revision!
Re: the IG report, if they “redact” and revise, there’s going to be trouble. I work for an IG and you don’t mess with conclusions that have been drafted and are supported by the evidence/data collected.
The biggest thing to take away from this whole proceeding is that now those 172 privileged documents are known to people other than the attorney and his client. The whole point of the attorney client privilege is to keep all communications between a person and his attorney strictly between that person and his attorney.
Also, the government did not simply seize specific documents which it knew, or suspected, existed. It grabbed everything it could with the sole intention of going on a fishing expedition. In so doing, it violated the rights of Mr. Cohen and his clients.
What nonsense!
So what is nonsensical about my post?
In the Servergate case, the DOJ allowed HRC’s attorneys to determine what constituted material which should be turned over to the government and what should not. That is, of course, ridiculous, where sufficient probable cause exists that a criminal act in which these documents are evidence exists, as it did in the HRC server case. In the Cohen case, the DOJ went in a 180 degree different direction and simply seized every document for examination. And, no one knows what examination of these documents and communications was made prior to them being transferred from the custody of the FBI to the special master. Also, we have no idea how many of these documents and communications are actually evidenciary in this case. Even after all of this falderal, it may turn out that there is no evidence among any of these documents and communications which prove that Cohen is guilty of the crime which is under investigation [whatever that may be].
The items seized should have been turned over to a special master at the scene of their seizure and then the special master and Cohen’s attorney should have gone through the material to determine what was germane to the case.
Waddabout…bad
Nobody knows…but it’s evil
Nobody can tell…but it was wrong whatever it was
Different stuff…which isn’t federal procedure…shoulda been done
But nobody has a “privacy right” to conduct fraud or other crimes, and those are EVIDENTLY implicated here.
“But nobody has a “privacy right” to conduct fraud or other crimes, and those are EVIDENTLY implicated here.”
So, who conducted fraud and what constituted that fraud? Do we know? I’ll help you out here. No, we do not know that any fraud was committed. And, if we do not know that a crime was committed, then we certainly do not know who committed it, do we?
Remember the bank vault example? Well, it is still approprioate. The investigators may know, though at this point the best that can be said from public knowledge in that they suspect, that evidence of Cohen’s involvement in a specific crime may have been on his electronic devices. If so, they could have filed for a search warrant which would have cited specific files that they wished to seize. But, they did not do that. They seized ALL of his records. Now, just as with the bank vault, a significant number of those records will have anything to do with any criminal action undertaken by Cohen. In fact, there are confidential matters which people, totally unconnected to any investigation into any suspected wrongdoing by Cohen, which are now in the hands of a third party, without the permission of those to whom the communications belong.
This was a fishing expedition by the DOJ. They had no idea what information was contained in Cohen’s files. So, they got a judge to sign off on a hugely overbroad search warrant so that they could sift through the files to see if there was anything that they could use against Cohen, and probably Trump.
and it can safely be assumed that the fix was in when the judge forced Cohen’s attorneys to publicly name Sean Hannity as a client of Cohen, when there was no evidence to implicate him any criminal action. Jurisprudence or politics?
“This was a fishing expedition by the DOJ.”
Clearly. They may have some information they believe leads to something criminal, but this was still pure fishing, for one reason –
“…to see if there was anything that they could use against Cohen, and probably Trump.”
No “probably’ about it.
This whole disregard for Attorney Client Privilege is just freaking insane. It just proves that rules are made to be broken. And, the Federal Government can ignore the Constitution and the Bill of Rights whenever it feels like it.
You’d have to understand the “rules” to make any valid argument they’re being broken.
As I’ve pointed out, attorney-client privilege is not a concept that allows an attorney to hide from fraud or crime.
Here, it’s a matter of close questioning as to whether any actual attorney-client relationship existed. “Fixers” are not necessarily acting as an attorney, and we know that Cohen was self-described as a “fixer”. The same would be true of a lobbyist, which we also know Cohen advertised himself as being.
Which is why the better practice, followed in California for example, requires the “special master” to be appointed before the search, not after the documents have already been seized and examined by the FBI.
The “special master” can be on scene during the search. Any documents that are truly covered by the attorney client privilege can be isolated from the ones that are truly linked to criminal activity.
The documents were not examined, by the FBI or anyone else, before the special master.
The documents were not examined, by the FBI or anyone else, before the special master.
There is trust issue, Milhouse; a DOJ that is attempting to overturn an election does not inspire confidence. We know that they were not ‘supposed’ to peek, but we don’t know if they honored that.
That’s the problem with a justice system that charges your money with a crime and then forces you to prove its innocence to get it back. That’s the problem with prosecutors that bludgeon ‘targets’ into submission and then claim a 100% conviction rate. That’s the problem with a government that weaponizes its institutions and then uses those institutions to enforce its hegemony.
@Milhouse:
I understood it to be the case that the entry team designated a couple of agents to take possession of items that were covered by the attorney client privilege, and to shield them from viewing by the rest of the investigators.
If so, then what we have is the FBI deciding which documents are subject to the attorney client privilege, which sort of defeats the purpose of having a special master appointed.
And as pointed out above, the FBI hasn’t exactly covered themselves with glory in connection with this case.
“The documents were not examined, by the FBI or anyone else, before the special master.”
How, with all the information now available, one can believe this is beyond me. Of course they examined it. They are corrupt and criminal.
I thought the government always conceded that there were bound to be some privileged documents in there, and wanted a clean team to find them and weed them out. So how is this finding a loss for them? How is the finding of so few such documents not a victory for them?
“So Cohen and/or Trump’s claims of privilege were upheld in 162 of 165 challenges.”
I’m having a difficult time with your comment –
“I thought the government always conceded that there were bound to be some privileged documents in there…”
162 of 165 would seem to be a bit more than “some”. 98.18% are privileged.
Maybe I’m misunderstanding your point.
I’m reading it as, out of 292,409 total items, there were 165 chalkenges and all but 3 went against Mueller.
But I haven’t slept in 36 hours so…
Well, as I said, I may be misunderstanding MH’s point.
I’m not even understanding “291,770 items” on I-phone/pad. Hell, I don’t even understand how one lawyer can have nearly 300K items. That’s some 80 “items” a day over 10 years. Is that even possible?
‘Item’, especially on something like an Iphone or Ipad, is a catchall term that applies to anything from a picture to a video to a 1000 page Word document.
Given that there are nearly 300,000 ‘items’ on the phones/ipad, it seems like a safe bet that each individual text message and photo it its own ‘item’. In which case 80 photos/emails/text messages per day is frankly not that much for a lawyer to have.
e.g. think about your phone right now. How many pictures/videos/text message do you have on it? Each of them is an individual ‘item’. Each video is an individual ‘item’. Each email is an individual ‘item’. Each individual text message is an ‘item’. It’s a term so general as to be functionally useless when trying to gauge the relative actual amount of data taken and amount excluded.
Thanks Olinser.
I assume then, the vast majority of “items” are innocuous stuff, surely not 80 per day for 10 years pertaining to something under investigation?
Exactly. A small portion of the documents turned out to be privileged, and the government always conceded that was going to be the case. The question is, had the judge allowed the clean team to decide this instead of the special master, how many documents would it have found to be privileged? Presumably no more than the special master did, but would it have found fewer? Significantly fewer? It’s impossible to know.
Thanks for the clarification.
“a small portion”
Your reading comprehension SUCKS!
This was only the first batch.
Of the documents reviewed so far, 14 of 17 emails were found to be privileged, along with 155 of the 155 phone/ipad documents.
The rest of the documents have not yet been reviewed.
So, 169 of the 172 documents the special master has, so far, reviewed are privileged.
In what universe do you imagine that 98.25% constitutes a “small portion”?
In the real universe, where what you wrote is just not true. The report says very clearly what the first batch consisted of, and it was not the 172 items for which Cohen’s lawyers claimed privilege. The overwhelming majority were so obviously not that they didn’t even bother claiming it, for fear of being slapped down hard. They saved their challenges for the few items they were pretty sure of getting, and they got all but three of them.
No – the key bit your missing is that this is merely the “first batch” of items reviewed.
98.25% of those items turned out to be privileged. Only 3 emails were not.
The rest, which is the vast majority of the haul, has yet to be reviewed.
Wrong. The first batch did not consist of 172 items. You made that up. The first batch consisted of eight boxes of hard copy containing 639 items, of which only 14 were found to be privileged, and three electronic devices containing 291,770 items, of which only 155 were found to be either privileged or personal. Almost all the rest were so obviously not privileged that Cohen’s lawyers didn’t even bother claiming they were.
Of the very few they claimed were privileged, in almost all cases they were right, which is to be expected; they might try making frivolous claims to an FBI “clean team”, but they wouldn’t dare do that to a special master. The only question, which is unanswerable, is whether an FBI “clean team” would have rejected substantially more of their 172 claims.
196k “Items”, in this case, appears to be individual pages. 172 documents may be anywhere from individual texts to 1000 page documents (not unknown in legal circles).
The cited apple vs orange metrics are a bit vague and opaque to outside view.
Also, please note that this only cited priveledged docs. Left unsaid are how many of the remainder have nothing to do with the claimed “crimes” under investigation and hence should never have been seized in the first case. Also left unsaid is what portion of the total seized docs remain – this being only the first look at the material.
Also, I would think the prosecution would want the most ‘juicy’ documents to go through the process first, so they could get their hands on them.
It wouldn’t be up to the prosecution which items went first, because they wouldn’t get to see anything before the special master reviewed it.
In theory, yes. I trust the FBI agents in charge of the raid about as far as I can throw a large building, but I’m willing to wait and see on that point.
Also, you have a point on the documents. If the FBI were to say to the special master “Please go through file cabinet #14 first” that implies they peeked, and if not, implies that they could have simply written the search warrant for that particular file cabinet (as an example).
Insty has news dated 7:29 EST that MaCabe is asking for immunity before he testifies to Congress.
First report so be skeptical, and may just be to shield himself and not indication he’s flipping. Who knows.
And please don’t get me in trouble by dresiling the thread 😉 just thought it relevant
Ah, it’s really the Clinton Email investigation and looks like a standard ploy because of the IG report.
“If this Committee is unwilling or unable to obtain such an order, then Mr. McCabe will have no choice but to invoke his Fifth Amendment privilege against self-incrimination,” Bromwich added.
I can’t keep track of which corruption relates to which government official anymore. Geez.
Conservative tree house has the letters exchanged between Grassley and McCabe’s attorney.
https://theconservativetreehouse.com/2018/06/05/fired-fbi-director-andrew-mccabe-requests-criminal-immunity-in-exchange-for-congressional-testimony/#more-150150
There is a trust issue here: As I understand it, all these documents went from Mueller’s team to the Special Master, not from the Special Master to Mueller’s team.
Acknowledging that Mueller cannot use any of the privileged information in a court of law, Mueller now knows what where to look for independent sources.
Obviously, I do not trust Mueller; but then I don’t think very many people do.
You understand incorrectly. Mueller’s team had nothing to do with this. The SDNY seized the documents, and handed them to the special master without looking at them first. The special master was the first person to review them.
Heh, heh; yes, the devil has something to do with the details or vice versa, I can never remember which. I do recall, however, that the SC referred this case to the SDNY and The DOJ is the DOJ whether in SDNY or in WASH, DC. Given that Mueller is a pretty important guy in the DOJ, I would expect that he has everybody’s full cooperation.
Thanks for the correction.
Which is both as you’d expect it to be, and as you’d want it to be.
One way complex criminal investigations HAVE to be pursued is across jurisdictional lines. You wouldn’t want “data islands” in the system.
As an attorney (not a criminal attorney) this strikes me as everyone doing their job.
Nothing to have anyone’s hair ignited over, for sure.
Except for Mueller even having any of those documents or indeed even his current job, in the first place.
I think, in good faith, people are forgetting that Mueller handed this matter off and it’s federal prosecutors of the Southern District of New York that oversaw the raid and seized the material.
And, in good faith, you honestly think that the instant they found anything allegedly ‘juicy’ they wouldn’t sprain themselves to find a way to leak it or hand it to him?
Oh, so he delegates his crimes.
I’m not sure that makes it better.
Does making it a RICO issue make it better? 3:)
In my office even bills are considered privileged unless the client wishes it not. There is a quantum of clients whose very names are privileged. I really don’t understand Kimba Woods. She has always seemed off the wall, but his all is really too much.
That’s my take on this too.
Congress should impeach.
They combed through his private home and his NY hotel room too. I can imagine they picked up a lot of materials unrelated to his legal work by doing so…
That’s nice. But your bills and your client contracts are discoverable by me. They are not privileged, at least under Texas law and I expect other jurisdictions law.
Really? Who besides you has ever considered her even slightly “off the wall”? I trust Beldar a whole lot more than you, and he says she is very much “on the wall”, if that’s an expression.
And no, as far as I know client names are not privileged. You may treat them as if they were, but that doesn’t make it so.
Some Texas ethics opinions support the idea that client lists CAN be privileged. It really all depends on the representation undertaken.
As I’ve related, some firms donating old copiers with hard-drives have gotten into trouble for not making certain that those drives are not totally erased.
Naturally, and barring a sealed case (which is very rare), any litigation is public record. So clients who are represented but do not become involved in litigation are generally dealt with very carefully. I would not consider advertising that I advised a high-profile client on my web-site, for instance.
OTOH, as I’ve pointed out before, anyone can see someone entering or leaving an attorney’s office, or their car parked in the attorney’s parking lot, and know or surmise they are at least consulting that attorney.
“OTOH, as I’ve pointed out before, anyone can see someone entering or leaving an attorney’s office, or their car parked in the attorney’s parking lot, and know or surmise they are at least consulting that attorney.”
I realize that you originally practiced law when the main source of transportation was the horse, but this is the 21st Century. Today, we have email, texting, the telephone and even video conferencing. So, a person does not have to physically enter or even meet an attorney to engage his services or to discuss legal matters. Even back in the good old days, a lot of legal correspondence was done via the US mail.
That’s an stupid personal attack. It’s also full of falsehoods.
You know as much about the practice of law as economics. Which is demonstrated here has nothing.
LOL. It is easy to simply make a claim. But, it would be so much better if you could actually point out what the falsehoods are in my statement.
“…news organizations are portraying the recommendations as vindicating the government:”
News organizations? Ministry of Truth perhaps.
Wait till they find that copy of Sanitarium he downloaded from Napster in 1996. That sumbitch is going to prison.
This is still the government deciding what the government will keep and see. This is still a raid (Like Manafort’s) that was unnecessary(Break in take everything and sort through, giving government employees access to every item these persons possess. Both were cooperating far more than Hillary or anyone around her.
So, what are the charges against Cohen?
They’ll figure that out when they find a crime. That’s Mueller’s M.O., right? Find the man, then find a crime.
First we get the sentence, then the verdict later.
Actual charges come some time after that.
Trump needs to appoint a different AG, if he can get the scum in the Senate to confirm a decent one. If Mueller can’t be fired and the investigation shut down for political reasons, there at least needs to be someone overseeing him and restricting his actions. This jerk is totally out of hand, and seems to have no limit as to who and what he can pry into.
McConnell has cancelled the Senate’s August recess; this prevents Trump from making a recess appointment.
It was never going to be a real recess anyway. Taking a real recess would require the House’s permission, and probably unanimous consent (or a filibusterable motion) in the senate.
First of all, there are two types of search warrants; supportive and investigatory. A supportive search is done to recover property or secure evidence which is support of a case in which sufficient evidence for arrest already exist. An example of this is a search warrant for drugs following a controlled buy at a particular location. An investigative warrant is issued to search for potential evidence where probably cause exists that a specific criminal act is occurring or has occurred.
The Cohen search warrant was investigative in nature, not supportive. What has happened over the last 20 years, is that judges have become much more lenient in regard to what constitutes “probable cause” for an investigative search warrant. These warrants have also become much broader in scope. Instead of restricting document seizures, in the Cohen case, to specific types of documents, the FBI grabbed everything. This is akin to the FBI opening every safety deposit box in a bank and examining its contents, because it suspects that evidence of a particular crime is stored in one of them.
What has to be remembered here is that people are entitled to their privacy, especially where their dealings with their personal attorney are concerned. In the Cohen case, the privacy rights of several other parties were violated, by both the DOJ and by the court, needlessly. People, for which no evidence exists that they were involved in any criminal act or enterprise with Cohen, had their privileged association and communications removed from their attorney’s custody and exposed to the scrutiny of the government. All so that the government could build a case against Cohen, and probably Trump.
Would that be, in layman terms, a fishing expedition?
this is far worse because there was no evidence of a levied crime when the judge issued this search warrant
Mueller & company are hoping they can find anything in this mountain of data for an indictment
in other words, they are not looking for evidence for an “existing” crime
Mueller’s team is looking for evidence of a “crime” they do not know yet exists
I repeat everything in any lawyers office should be password protected and encrypted now that privileged communications has been scrapped. Not just client data, everything.
Nothing has been “scrapped”. This is mere hysterics.
I think this could be more significant than some claim. The Special Master used the term”items” to describe what was found to be privileged. I don’t know the definition being used but “item” could be an entire client file consisting of hundreds of pages. Therefore, using the pages reviewed as a measure and the saying only a small number were privileged may be completely inaccurate. For example, a note about a dinner reservation in these seized materials could be one sentence (one item) and not be privileged. That is one “item” and there could be thousands of such small “items”. Then theSpecial Master looks at a client file consisting of hundred of pages and finds it is “privileged.” That doesn’t mean 50% of the materials seized are not privileged!
Clear evidence that Cohens files are already being leaked by those “prosecutors” while some claim they would never do that.
http://thehill.com/homenews/administration/391029-ivanka-trump-connected-cohen-with-russian-offering-to-help-facilitate
An attempt to damage Trump. It’s a stupid attempt, nothing there, but an attempt none the less.
Anyone that believes these people are honest and uphold the law need to retract their heads from the sand.