Manhattan federal prosecutors agreed Monday to continue delaying their inspection of a cache of sensitive materials seized last week from President Donald Trump’s personal lawyer Michael Cohen, as both men pressed attorney-client privilege claims at a charged two-hour court hearing.
U.S. District Judge Kimba Wood made no final rulings on requests by Trump and Cohen to take over from the government the lead role in identifying privileged items, indicating she trusted prosecutors’ “integrity” on most items but was open to suggestions of a special master for some materials, such as those related to Trump.
“In terms of perception of fairness, not fairness itself, but perception of fairness, a special master might have a role here,” the judge said. “Maybe not the complete role, but some role.”
The hearing had an overflow crowd anxious to get the latest on a legal struggle that could potentially imperil a president. It was attended by both Cohen, the Trump confidante who paid $130,000 to porn star Stormy Daniels to keep quiet about an alleged affair with Trump, and Daniels herself, who swept into the courtroom as it was about to begin.
It also featured revelations that since 2017 Cohen has had only three legal clients – Trump; Republican donor and venture capitalist Elliott Broidy, who also reportedly paid hush money to keep quiet about an affair; and a mystery man who Cohen’s lawyers struggled to keep secret until Wood gave them a direct order.
“The client’s name is Sean Hannity,” responded lawyer Stephen Ryan, setting off a wave of titters and laughs in the courtoom with the disclosure that the Fox commentator, who is Trump’s most strident supporter, also shares a lawyer with the president.
The hearing was triggered by a surprise raid a week ago on Cohen’s home, safe deposit box and office in which agents seized the former Trump Organization special counsel’s files, hard drives and electronic devices, and said they had already secretly seized Cohen’s emails.
Prosecutors say they are conducting a criminal probe into Cohen’s personal business affairs and finances. But his involvement in the Daniels payoff, Trump’s business dealings and several aspects of Special Counsel Robert Mueller’s probe of possible collusion with Russia could also potentially put the president in legal peril.
Typically, a so-called “taint team” of prosecutors walled off from investigators reviews seized materials to determine which items are relevant to their probe, which involve legal matters that might be protected by privilege, and which lose the privilege because they involve crime or fraud.
Prosecutors want to move fast, but Cohen and Trump contend the sensitivity of the materials requires a different approach. Both want their legal teams to get the first opportunity to identify privileged materials, and Cohen has suggested a special master as an alternative, leaving the government to challenge privilege claims instead of making the first decision.
“We’re asking for the president to have the opportunity to protect this sacred privilege,” Trump lawyer Joanna Hendon argued. “ . . . The government should not see privileged documents of the president.”
But prosecutor Thomas McKay warned that Cohen and Trump were trying to drag things out. “Their incentive is to delay an ongoing investigation,” he told the judge.
Wood said the first step was for prosecutors to upload copies of everything seized to Cohen, so that prior to the next hearing Cohen, Trump and the government can all use electronic “search terms” to pin down the volume of items relating to Trump and other Cohen clients dating back to 1991.
Although she said she was open to trying a special master for some materials and asked both sides to suggest names, she showed no enthusiasm for letting Trump’s or Cohen’s lawyers conduct the initial review. She also denied Trump’s request for an order barring prosecutors from reviewing the materials, calling it “moot” after McKay promised no one would read anything prior to the next hearing.
While the lawyers were close-mouthed after the hearing, Daniels – who has challenged attempts to silence her and spoken out about the claimed tryst with Trump – held a news conference before a wall of cameras, saying she wants to expose how Cohen has silenced her and other women.
“Mr. Cohen has acted like he is above the law,” she said. “My attorney and I are committed to making sure everyone finds out the truth.”