Manhattan U.S. District Judge Kimba Wood on Thursday brushed aside resistance from the government and named a former federal judge as special master to review attorney-client privilege claims by President Donald Trump over materials seized from his lawyer Michael Cohen.
Wood named Barbara Jones, a lawyer at the Manhattan firm Bracewell LLP who was a mob prosecutor and a federal judge from 1995 to 2013 after being nominated by President Bill Clinton. She is best known for a landmark same-sex marriage ruling and for overturning the NFL’s suspension of Ray Rice for assaulting his girlfriend.
Until an eleventh-hour shift Thursday morning, prosecutors had argued that sorting out privilege claims from Trump and others should be left to a team from their office. They complained a special master would delay their probe of Cohen, the Trump lawyer who paid $130,000 to keep porn star Stormy Daniels from speaking publicly about her alleged affair with Trump.
“This process can go quickly with a special master, assuming everyone works as hard as you’ve represented you can work,” said the judge, who previously said that it might increase the “perception of fairness” to have a neutral person take over the lead role from prosecutors.
Wood, in another setback for the government, also refused to order that an internal “taint team” of prosecutors walled off from the investigation should ever get access to documents Jones deems privileged in order to challenge that decision. Lawyers for Cohen and Trump fiercely opposed giving any prosecutors access to their privileged materials.
The hearing was the third following an April 9 raid on Cohen’s home, office, hotel room, and safety deposit box in which documents and electronic devices were seized. Because of his close ties to Trump, the seizure was seen as a legal threat to the president, and his lawyers intervened.
Prosecutors say Cohen, who has also come under scrutiny in probes of possible collusion with Russia in the 2016 election, is under investigation for fraud-related offenses in his personal business dealings. Daniels’ lawyer says the probe is partly focused on Cohen’s payments to her.
Although the issues of how to sort through attorney-client privilege claims are technical, the legal challenge by Cohen and Trump has at a minimum delayed prosecutors from even looking at the fruits of their raid for two weeks already, and that is likely to continue until the next hearing May 24.
In addition, Cohen and Trump are receiving copies of all the seized materials — the production of data from 16 iPhones and iPads began Thursday, with hard copy and computer drives to follow — to review for privilege, and will be able to see what was taken and develop a strategy to address potential damage before prosecutors even look at it.
Typically, an internal prosecution team not involved in an investigation reviews seized materials to see what might be protected by attorney-client privilege, and what material loses privileged status because it involves crime or fraud. Disputes go to a judge.
Cohen — and Trump and the Trump Organization for their documents — wanted to take over the lead role. Wood’s choice of Jones represents a middle ground. Wood said the master will be briefed by prosecutors, sort materials while Trump and Cohen do the same, and make rulings. The judge didn’t set a deadline, but would keep the process on a tight leash.
But Wood left two potential flashpoints, leaving it initially up to Jones whether she will also protect some materials because they aren’t covered by the warrant, and whether she will let prosecutors look at materials deemed privileged to mount challenges.
Prosecutor Thomas McKay said that “law enforcement interests” would be compromised if their lawyers didn’t get to see everything and had to base challenges on a summary from Jones, but Trump lawyer Joanna Hendon said the president would “make strong objection” to sharing his privileged materials.
In a TV interview Thursday, Trump, who has said he didn’t know about payments to Daniels, acknowledged for the first time that Cohen did legal work for him relating to the porn actress.
Daniels herself, who created a sensation when she appeared in court last week, wasn’t present, but her lawyer Michael Avenatti, filed a motion to intervene, and told Wood that he needed to protect privileged materials Daniels’ former lawyer may have improperly shared with Cohen while the hush money deal was being negotiated.
McKay told Wood that “we have no concrete information that happened,” and asked for time to respond to the request. Wood deferred her ruling until next week.
- Age 70
- Appointed special master to review attorney-client privilege claims by President Donald Trump over materials seized from his lawyer Michael Cohen.
- Lawyer at Manhattan firm Bracewell LLP.
- Former mob prosecutor
- Former senior aide to Robert M. Morgenthau, the former Manhattan district attorney.
Federal judge from 1995 to 2013 after being nominated by President Bill Clinton.
Best known for a landmark same-sex marriage ruling and for overturning the NFL’s suspension of Ray Rice for assaulting his girlfriend.