Lawyers for President Trump’s personal attorney Michael Cohen asked a federal judge Friday to block the review of documents seized by the FBI earlier this week.
The FBI raided Cohen’s office, hotel room, and residence earlier this week seeking documents related to a $130,000 payment Cohen made to the adult film actor known as Stormy Daniels to keep quiet about an affair, and the relationship with tabloid company American Media, which paid former Playboy Playmate Karen McDougal a similar sum earlier in 2016 for her silence about her alleged affair with Trump. Investigators also sought documents related to the "Access Hollywood" “grab ‘em by the pussy” tape leaked shortly before the 2016 election.
“He is the president of the United States,” Joanna Hendon, representing Trump, argued to U.S. District Judge Kimba Wood, a Reagan nominee. “This is of most concern to him.”
Since the computers, documents, and other records seized in the Monday raid may contain information covered by attorney-client privilege — Trump being the client here — the next step is for the U.S. Attorney’s office for the Southern District of New York, handling the Cohen case, to form what’s called a “taint team” of lawyers who are independent from the investigation to sift through the seized materials to determine which documents investigating attorneys will be allowed to see.
Those documents are then turned over to the attorneys on the investigation side and will inform whether they bring charges against Cohen.
Trump and Cohen’s lawyers say they doubt the U.S. Attorney’s office can be fair in their “taint team” process.
“The idea that anyone could fairly pick up communications between him [Trump] and Mr. Cohen, that’s going to be a very heavy lift,” Hendon said.
Alternatives to the traditional “taint team process” include allowing Cohen or Trump’s lawyers to be in the room reviewing documents together with the team, which is not uncommon. In that case, a judge would likely have to make a final decision about disputed documents. Another option floated at Friday’s hearing was appointing a “special master,” an independent person agreed upon by both sides, to oversee the process, taking the power away from the U.S. Attorney’s office.
Tom McKay, an attorney for the U.S. Attorney’s office, argued that his office is well equipped to handle the review, and accused Cohen and Trump of trying to delay access to the documents.
“He [Cohen] has been on notice for this since Monday,” McKay said. “We absolutely do object to this delay.”
Trump’s lawyers, Cohen’s lawyers, U.S. Attorney’s office lawyers, and Stormy Daniels’ lawyer Michael Avenatti will reconvene at 2 p.m. Friday to discuss whether the debate about who will be involved in the “taint team” process will be sealed from the public.
Avenatti has concerns about the process too.
“He [Cohen] knows where all the bodies are buried,” Avenatti said after the hearing. “We don’t want documents disappearing under any circumstances. The president of the United States should have no greater rights and no less rights.”
Much is still unknown about how the investigation targeting Cohen ended up in the Southern District of New York. Deputy Attorney General Rod Rosenstein, who is overseeing special counsel Robert Mueller’s investigation into whether the Trump campaign had anything to do with Russian meddling in the 2016 U.S. election, signed off on the transfer of information uncovered in that probe to the U.S. Attorney’s office in New York. Then, U.S. Attorney Geoffrey Berman recused himself, presumably because Trump hand-picked Berman for the job, leaving the Cohen investigation in the hands of Berman’s second-in-command, a career official whom Trump cannot fire.
The Southern District of New York’s control doesn’t necessarily mean that the Cohen investigation is entirely unrelated to Russia, according to former U.S. Attorney Brett Tolman.
Mueller may have requested this part be transferred to the Southern District, well known as the most prestigious U.S. Attorney’s office in the country, because he wanted an outside office to handle this “taint team” process for security and resource reasons.
“There are ways in which you could take away the appearance of potential issues having the review be done this way,” Tolman said.
The debate about who should be in the “taint team” room will likely happen in front of Judge Wood on Monday, with briefs filed by all interested parties over the weekend.
Cover image: In this Wednesday, April 11, 2018, photo, Michael Cohen, President Donald Trump's personal attorney, walks along a sidewalk in New York. (AP Photo/Seth Wenig)