Trump wants to review material seized from personal lawyer before federal investigators
A federal judge will consider President Donald Trump's extraordinary request that she block his own Justice Department from viewing evidence about his private lawyer seized last week in an FBI raid.
U.S. District Judge Kimba Wood on Monday will weigh Trump's arguments at a hearing that will decide the next steps in a fast-moving investigation of the lawyer, Michael Cohen. Trump's attorneys and Cohen will be in court -- along with Stormy Daniels, the adult-film star who claims she had sex with Trump in 2006 and took a $130,000 hush payment shortly before the 2016 election.
On Sunday, April 15, the president's attorneys filed court papers seeking to temporarily bar Justice Department prosecutors from reviewing evidence taken during the April 9 raid on Cohen's home, office, hotel room, safety-deposit box and phones.
Some material may involve communications between Trump and Cohen, and should be reviewed first by Trump, not federal prosecutors in New York who are investigating Cohen, the president's lawyers argued. Prosecutors want a separate group of government lawyers to review the material first and determine what's covered by the attorney-client privilege -- a process Trump's lawyers say is unfair.
"In the highly politicized, even fevered atmosphere that envelops this matter, it is simply unreasonable to expect that a team of prosecutors, even if not directly involved in the separate investigation of Mr. Cohen, could perform a privilege review in the manner necessary to safeguard the important interests of the President," Trump's attorney, Joanna Hendon, wrote in an eight-page letter to the judge.
The legal maneuvering is the latest twist in parallel U.S. investigations that Trump has assailed as a "witch hunt." In Washington, Special Counsel Robert Mueller is looking into possible ties between the Trump campaign and Russian interference in the 2016 election, while the U.S. attorney in New York has opened his own investigation of Cohen's activities. Trump's aides consider the Cohen inquiry, which has been underway for several months, to pose the greater threat to the president, the New York Times reported April 13.
"The question now before the court is, who should perform the initial review of the seized materials to assess whether they are, or are not, subject to a valid claim of privilege," Hendon wrote. The choice is between a "team consisting of colleagues of the prosecutors assigned to this investigation, or the President, who is the holder of the privilege."
At a court hearing on Friday, Cohen's lawyers estimated that the evidence seized by the FBI includes "thousands, if not millions" of documents protected by the attorney-client privilege, including communications with Trump and with other Cohen clients not involved in the investigations. They also invoked the work-product privilege, which protects material prepared by a lawyer in the course of legal representation.
Prosecutors argued in their own filing Friday that the investigation of Cohen focuses on his private business dealings and that evidence uncovered so far indicates Cohen has done "little to no legal work." They want the separate group of prosecutors, or a so-called taint team, to review the seized documents to weed out any that might be covered by the privilege. The privilege doesn't cover communications in furtherance of a crime.
In their filing on Sunday night, Trump's lawyers said a taint team won't be fair to the president. Prosecutors "already pre-judged the matter of privilege, repeatedly urging that few privileged documents are likely to be found," according to the filing. The "disinclination" to find privilege is "a bias that virtually guarantees that there will not be a fair privilege review of the seized materials."
The president's representatives want the documents first turned over to Cohen's lawyers, who in turn would allow Trump and his attorneys to review them before prosecutors see them.
"The lodestar is fairness, not speed," Hendon wrote.
Prosecutors in New York haven't identified what specifically they're probing, although they said in a court filing that "the crimes being investigated involve acts of concealment by Cohen.'' The Washington Post has said prosecutors are investigating possible wire fraud, bank fraud and campaign finance violations.
At Friday's hearing, Judge Wood asked Cohen's lawyer for a list of his clients, which they're expected to present to her on Monday. Cohen wasn't in court Friday. Instead, television cameras caught him sitting on a bench outside the Loews Regency Hotel in Manhattan -- where the FBI conducted one of the raids on April 9 -- chatting with a group of men smoking cigars.
Wood directed Cohen to appear in court on Monday afternoon, when she is set to resume considering the matter.
In a courtroom sure to be standing-room-only, Cohen will encounter the adult-film actress whose real name is Stephanie Clifford. She is suing Trump and Cohen to void a non-disclosure agreement she signed with a company set up by Cohen just before the election. Trump has denied having had a relationship with Daniels and said he didn't know where Cohen got the money. Cohen says he paid the money on his own and wasn't reimbursed.
Cohen's lawyer has said that Mueller referred some of the evidence uncovered in his investigation to prosecutors in New York. After the FBI raid on Cohen, Trump stepped up his criticism of Mueller. His spokeswoman, Sarah Sanders, told reporters that the president has the authority to fire Mueller on his own.
The regulations that created the special counsel position say that only the attorney general or his designee can fire the special counsel and only for good cause, such as misconduct, conflict of interest or a violation of Justice Department policies.
Wood, the judge in the case, was famously nominated for U.S. attorney general by President Bill Clinton in 1993, only to have her nomination withdrawn over revelations that she had employed an undocumented worker.
Story by Bob Van Voris and David Voreacos