The prosecutors maintain that the government can be trusted not to violate any attorney-client confidentiality issues…
(Adam Klasfeld, Courthouse News) MANHATTAN – Confirming for the first time that President Donald Trump’s private counsel is the subject of a months-long criminal investigation, federal prosecutors asked a judge Friday to deny Michael Cohen’s unprecedented request to get first crack at evidence seized from his home and office.
“Cohen’s novel proposal would set a dangerous precedent,” Assistant U.S. Attorney Thomas McKay wrote in a 22-page legal brief.
“It would permit subjects or targets of an investigation, who have not yet been indicted, to delay government investigations into their criminal conduct by giving them, and not the government, the authority to make a unilateral determination not only of what is privileged, but also of what is ‘responsive’ to the warrant,” he added.
Led by Deputy U.S. Attorney Robert Khuzami, who received the case after Southern District of New York chief Geoffrey Berman recused himself, the opposition brief filed this afternoon argues that the government can be trusted not to violate any attorney-client confidentiality issues. Black-mark redactions throughout the brief keep secret the specific crime for which Cohen is being investigated.
The week that began with a dramatic early-morning raid on the home, office and hotel room of a sitting U.S. president’s personal attorney ended in equally dramatic fashion in a packed courtroom this morning.
There, U.S. District Judge Kimba Wood convened a hearing to resolve Cohen’s request for a temporary restraining order that would let his team conduct the first privilege inspection over the files seized Monday by the FBI.
Trump’s attorney Joanna Hendon, from the firm Spears & Imes, argued at the hearing that Judge Wood should delay making a decision, saying she needs more time because the matters are “so weighty.”
“He is the president of the United States,” said Hendon, who is herself a former Manhattan federal prosecutor.
“Ultimately, in my view, this is of most concern to him,” she added later. “I think the public is a close second. And everyone who has ever hired a lawyer is a close third.”
Referring to what she described as a rush to use the seized documents, Hendon said: “There’s an appearance of fairness problem here.”
Trump retained Hendon two days after the raid of Cohen’s properties, and the president is listed on the courtroom docket as an intervening party.
With the docket currently under seal, Judge Wood told that press and public that she would provide as much transparency as she could given the sensitivity of the situation.
“The compelling interest here is protecting the ongoing criminal investigation as well as the attorney-client material,” she said.
Rarely have U.S. court proceedings been convened in public over a search warrant in a criminal probe, but an attorney advocating for the media’s First Amendment right of access noted that the cat already is out of the bag about the investigation.
“It’s about as full of a courtroom as I’ve ever been in,” said ABC News’ attorney Rachel Strom, from the firm Davis Wright Tremaine.
Cohen’s attorney Todd Harrison, from the firm McDermott Will and Emery, pushed for his legal team to get a “first cut” at examining whether any of those files are irrelevant or privileged. His legal team’s original motion describing their proposal is pockmarked throughout with redactions.
“This matter is particularly sensitive and unique because, as the government is well aware, the President of the United States is one of Mr. Cohen’s clients,” Harrison wrote before several blacked-out lines in a 27-page brief.
In addition to requesting a restraining order, Harrison moved to keep all information related to the investigation under seal.
“This matter has received overwhelming media attention—as the government intended,” the brief states. “However, courts have kept certain documents sealed in even the most high-profile cases.”
Prosecutors at the Southern District of New York are believed to be running such issues through their “taint team,” but Cohen’s attorney said a neutral “special master” would be better suited.
Both Cohen and Trump’s attorneys requested time to review the government’s once-sealed court filing.
Citing her client’s “exceptional nature,” Hendon hoped to sit down with Cohen and prosecutors to reach an agreement, but she added that she would engage in litigation “if necessary.”
Assistant U.S. Attorney Tom McKay rejected the notion that Trump deserved special consideration.
“Counsel just referenced the appearance of fairness and the exceptional nature of her client, and with respect, his attorney-client privilege is no stronger than any other person who seeks legal advice,” he said.
The prosecutor also called it ironic that Trump’s attorneys implicitly accused the government of moving too quickly, and dismissed the idea that prosecutors treated Trump unfairly.
“This is a [temporary restraining order] brought by Mr. Cohen, not by the government,” he said. “So these claims of undue rush are a little strange coming from the person who brought the motion for a TRO and the privilege holder for whom he’s making the motion.”
Multiple reports say that the warrant sought to collect records on Cohen paying $130,000 to porn actress Stormy Daniels in 2016 when Trump was on the campaign trail. Daniels claims that Cohen bullied her to cover up a one-night stand with the then-reality TV star.
Attorney Michael Avenatti, who represents Daniels, corroborated those suspicions today when he told Judge Wood that he had “every reason to believe” that some of the seized records involved his client.
Outside the courtroom, Avenatti told reporters: “We’re here to ensure that the American people have as much access to documents and information concerning this criminal investigation as possible.”
But Daniels’ lawsuit against Trump and Cohen – which Daniels had asked the presiding judge to fast-track – may soon screech to a halt, after Cohen and Trump asked for a 90-day stay in the case Friday while the dust from the FBI raid settles.
“Because the facts underlying this action and the criminal investigation related to Mr. Cohen overlap, Mr. Cohen’s Fifth Amendment rights may be adversely impacted if this case proceeds,” the parties say in their 3-page ex parte request. “As such, if this action is not stayed, defendants will be unable to fully respond to and defend themselves against the claims asserted by plaintiff (including in connection with the currently pending motions), resulting in substantial prejudice.
“Additionally, plaintiff may also be prejudiced if a stay is not granted because she likely would be unable to obtain the documents and deposition testimony that she is seeking from Mr. Cohen pursuant to her motion for expedited discovery, in the event that motion is granted (which it should not be). The requested stay therefore is necessary to prevent all such prejudice.”
Cohen has been accused of arranging these sorts of deals before to silence extramarital affairs. Similar revelations emerged Friday that Cohen helped GOP fundraiser Elliott Broidy negotiate a $1.6 million payment to a Playboy playmate who said that Broidy impregnated her.
Confirming the report in a statement, Broidy lamented that Cohen’s involvement transformed what he described as a “personal matter between two consenting adults” into the “subject of national discussion.” Broidy resigned from his role as the Republican National Committee’s deputy finance chair following the revelations.
The attorney for Daniels also offered insight about Trump’s new legal team.
“It’s our view that in the very moment those raids were conducted on Monday that an unwaivable, or nonwaivable conflict of interest occurred between Mr. Cohen and Mr. Trump that mandated, required, that he get new counsel,” Avenatti said. “So I’m not surprised by that, what I’m surprised at is that it appears to have taken him two or two and a half days to get new counsel in place. In my view, he should have had new counsel by the close of business Monday. It’s rather shocking to me that the President of United States of America is not able to obtain competent legal counsel for some 48 hours after his attorney’s office was raided.”
Following today’s proceedings, Judge Wood formally granted Trump’s motion to intervene in the case and set a Sunday deadline for his attorney to file a letter.
She ordered Cohen’s presence in the courtroom for a hearing set for Monday afternoon.
Courthouse News reporter Josh Russell contributed to this article.