Lawyers for President Donald Trump said in a Sunday night filing in Manhattan federal court that his legal team should play a primary role in initially determining whether attorney-client privilege protects files seized last week in a raid on his longtime personal attorney Michael Cohen.
Trump’s lawyers also asked U.S. District Judge Kimba Wood to enjoin prosecutors from “proceeding with any review” of the materials. Their filing came on the eve of a scheduled Monday hearing on Cohen’s bid to give his lawyers or a court special master an expanded role in the privilege review.
“The seized materials relating to the President must be reviewed by the only person who is truly motivated to ensure that the privilege is properly invoked and applied: the privilege-holder himself, the President,” wrote Trump lawyer Joanna Hendon.
Cohen, who has admitted that he paid $130,000 to porn actress Stormy Daniels to stay quiet about her claims of an affair with Trump, is the subject of a criminal investigation focused on his personal business affairs and finances, according to the government. Trump has denied the affair.
Federal agents searched his office and residences and seized his electronic devices after secretly obtaining his emails. The government says the usual procedure in a law office search is for a “taint team” of prosecutors walled off from investigators to screen out privileged materials, and then let the subject of the search weigh in.
Wood has ordered Cohen to appear in court in person on Monday to answer questions about his law practice and clarify what clients he had other than Trump, amid claims from prosecutors that his challenge is delaying a “fast moving” investigation. The judge has allowed Trump to participate.
Trump’s lawyers went further than Cohen in their Sunday letter to Wood, arguing that even a special master would not be an acceptable substitute for the president himself doing the first review of all seized materials, identifying what he considers privileged and then giving prosecutors the chance to challenge his conclusions.
“Even a presumptively neutral third person cannot provide that which is indispensable here — intimate familiarity with the underlying facts and zealous advocacy on behalf of the privilege-holder,” the president’s lawyers wrote.
Trump’s filing also called prosecutors’ decision to conduct a raid instead of issuing a subpoena to Cohen “disquieting to lawyers, clients, citizens, and commentators alike,” and said prosecutors had “a bias that virtually guarantees that there will not be a fair privilege review of the seized materials.”
In the “highly politicized, even fevered, atmosphere that envelops this matter,” Trump’s lawyers wrote, “It simply cannot be the case that by acting in such an aggressive, intrusive, and unorthodox manner, the government has somehow created an entitlement on its own part to eliminate the President’s right to a full assertion of every privilege argument available to him.”
The letter from Trump’s team said the judge should set a “reasonable schedule” for a process in which copies of all documents would be returned to Cohen and Trump would do an initial review before anything was turned over to investigators, but it did not propose a deadline.
Monday’s hearing is scheduled to begin at 2 p.m.