Reposted with permission from The Hill
A federal judge dealt a blow to Michael Cohen, the president’s embattled personal lawyer, in a closely watched court decision on Monday afternoon.
Judge Kimba Wood of federal District Court in Manhattan denied an attempt by Cohen and President TrumpDonald John TrumpPoll: Less than half of Americans think their taxes are too high Comey pulls no punches with Trump Incoming Pence adviser withdraws nomination following reports Trump opposed candidacy MORE to stop prosecutors from reviewing the materials that the FBI seized from his office, home and hotel room last week, according to multiple reports.
Cohen’s legal team had asked for a temporary restraining order so that they could review the files and then turn over to prosecutors those that were “responsive, non-privileged items” — a request the government called unprecedented.
But in a victory for Cohen, Wood did order the government to create a database of what was taken from Cohen and share it with his legal team, according to The Associated Press.
Wood did not make a final decision on Cohen’s request that she appoint a neutral third party known as a “special master” to sift out privileged materials.
Prosecutors have said a standard “taint team” can review Cohen’s materials and decide what is privileged and cannot be given to criminal investigators.
Wood professed confidence in the U.S. attorney’s office handling the case but noted that there might be a role for a special master to ensure the “perception of fairness.”
“I have faith in the Southern District U.S. Attorney’s Office,” she said. “Their integrity is unimpeachable.”
Cohen’s lawyers had objected to the use of a so-called taint team to review the materials. A “taint team” is a separate team of prosecutors tapped to take a first pass at seized documents to filter out those that are subject to attorney-client privilege, before the core prosecutorial team views the materials.
The procedure is an established one laid out in the U.S. Attorneys’ Manual that’s designed “to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material.”
But because the taint team would be made up of “colleagues of the prosecutors assigned to this investigation,” Cohen’s lawyers argued, Cohen’s team should be given first crack at the materials, or the court should appoint a special master.
The filing noted a “growing public debate” about whether government investigations “are being undertaken impartially, free of any political bias or partisan motivation” — an allegation made by many of President Trump’s staunchest supporters.
In an extraordinary move that pitted Trump against his own Department of Justice, a lawyer for the president filed an emergency motion Sunday night saying that he also objected to the “extraordinary measure.”
The Justice Department pushed back on the claims, arguing that Trump’s requests to review the seized materials “erect an unprecedented and unwarranted obstacle to the government’s ability to investigate attorneys for their own conduct, in this case or any other.”
According to the government’s filing, Cohen is under investigation for “criminal conduct that largely centers on his personal business dealings” — reportedly bank fraud and violations of campaign finance law. A $130,000 payment to adult-film star Stormy Daniels is believed to be among the things the U.S. attorney’s office is investigating.
There are limits to attorney-client privilege in court, including if the discussions were not centered on legal advice or if they were untaken as part of an effort to commit a crime.
In its filing, the government says that it believes the “overwhelming majority of evidence seized” will relate to Cohen’s business dealings — and that many of the crimes it is investigating “have nothing to do with his work as an attorney.”
“[U.S. Attorney’s Office for the Southern District of New York] USAO-SDNY has already obtained search warrants — covert until this point — on multiple different email accounts maintained by Cohen, and has conducted a privilege review of the materials obtained pursuant to those warrants,” the government disclosed late last week.
“The results of that review, as reported by the USAO’s Filter Team, indicate that Cohen is in fact performing little to no legal work, and that zero emails were exchanged with President Trump.”
— Updated at 6:14 p.m.