A federal judge is weighing a crucial decision over who will be tasked with reviewing the materials that were seized from Michael Cohen, President TrumpDonald TrumpOvernight Defense & National Security — The Pentagon's deadly mistake Overnight Energy & Environment — Presented by Climate Power — Interior returns BLM HQ to Washington France pulls ambassadors to US, Australia in protest of submarine deal MORE’s longtime personal attorney.
Attorneys for Cohen and Trump have pushed for the appointment of a so-called special master, a neutral third party who would decide what materials are covered by attorney–client privilege and cannot be given to prosecutors.
Lawyers for the Justice Department, on the other hand, say they already have a “taint team” capable of conducting an unbiased review.
Both sides have made their case in filings to Judge Kimba Wood, an appointee of former President Reagan. A decision could come sometime next month, with a status conference set for May 24.
The stakes are high both for Trump and Cohen, who has worked for decades with the Trump Organization.
“I don’t know of many criminal investigations that involve the sitting president of the United States,” said Glen Kopp, a former federal prosecutor who is now a partner in the New York office of the law firm Mayer Brown.
But whether Trump will be implicated in the activities that federal prosecutors are investigating remains unclear, Kopp noted.
The U.S. Attorney’s Office for the Southern District of New York is reportedly investigating Cohen for several potential crimes, including campaign finance violations and bank fraud, among other things. The office received a criminal referral from special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE, who is leading the investigation into potential collusion between the Trump campaign and Russia’s efforts to meddle in the 2016 presidential election.
Some of the materials taken from Cohen could be related to the $130,000 payment Cohen said he made to Stormy Daniels, an adult-film star who claims to have had an affair with Trump in 2006. Cohen claims to have made the payment to Daniels out of his own pocket and without Trump’s knowledge.
The president, meanwhile, has slammed the FBI raid on Cohen, calling it an “attack on our country” and declaring in a tweet, “Attorney–client privilege is dead!”
While some of Trump’s communications with Cohen are likely privileged, legal experts note that there is an exemption for the furtherance of criminal activity.
The question, then, is who gets to decide which of Cohen’s materials are privileged and which are not.
In court briefs, Cohen’s attorneys argued that a special master should be appointed to keep federal prosecutors from getting access to materials they did not have a search warrant for.
They cited the case of United States v. Stewart, which centered on a New York attorney, Lynne Stewart, who was convicted of providing material support to an Egypt-based terrorist organization.
The government argues there are major differences between the two cases. They also told the court the investigation of Cohen “largely centers on his personal business dealings,” rather than his work as an attorney.
“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,” they wrote.
George Fisher, a professor at Stanford Law School and former Massachusetts prosecutor, said Cohen likely sees a special master as a more neutral arbiter than the Department of Justice.
“Whether that’s true or not, the public probably will share his view and will accept a special master’s determinations as fair,” he said.
Others have argued Cohen’s push for the special master might be a tactic to slow down the investigation.
FBI agents appear to have taken a substantial amount of materials from Cohen. The raid included his office, residence and a hotel room, with agents reportedly taking documents, devices and recordings that Cohen made of conversations.
In a letter to the court, the government said a taint team could begin reviewing the materials this month, but under the court’s schedule, a special master’s review wouldn’t begin until June, at the earliest.
Ronald Sievert, a former career federal prosecutor who spent 25 years at the Justice Department, said there’s essentially a wall within the agency between the taint team and the federal prosecutors handling the case.
“They remove the taint by one group looking at everything and only passing on to the criminal prosecutors that which is evidence of the crime they are prosecuting. … I trust them because I’ve been a member of a taint team several of times,” he said.
“I know we’re honorable, but from a criminal defense attorney’s perspective, they look at it like we’re all one DOJ and we’re sneaking around telling each other stuff we’re not supposed to.”
Some court-watchers predict that Wood will grant Cohen’s request for a special master, if only because of the intense media scrutiny of the case.
“I think it’s such a high-profile matter and such an important matter that it would give the parties and the public more comfort to know a neutral party, who’s not part of the government, is reviewing documents and helping make the call on the privilege issue,” said David Cohen, a special master with a national practice based in Cleveland.
Wood, 74, is no stranger to high-profile legal drama.
She sentenced the first CEO of a Wall Street investment bank charged with insider trading in 2000, presided over a case involving Russian spies in 2010 and handled the recent corruption trial of former New York state Senate Majority Leader Dean Skelos (R), Time magazine reported.
Kopp isn’t convinced Wood will side with Michael Cohen.
Just because Brown didn’t immediately agree to a special master at the April 16 hearing doesn’t mean she’s more likely to in the coming weeks, Kopp said.
“If I had to bet, I would say she will not use the special master.”
“I think the special master in this circumstance has become more about keeping up appearances rather than substantively necessary,” he said.
Should Wood decide to appoint a special master, both sides in the case have offered their own ideas about who it should be.
Cohen’s attorneys have recommended the judge choose between four former federal prosecutors who are now criminal defense attorneys. The government has offered up the names of three magistrate judges.
Some experts say Wood could look for a middle path and appoint a special master, but only to work in conjunction with the taint team on resolving any disputes over privilege.
“It sounds like she’s inclined to have a special master have some role,” David Cohen said.
“It wouldn’t surprise me for her to say, ‘OK taint team, go do what you do, but I’m going to have a special master review what you’ve done.’ ”