Cohen was just forced to disclose that Sean Hannity is one of his clients.
Lawyers for both Michael Cohen and President Donald Trump are facing off with Justice Department prosecutors in a New York courtroom, as they battle over what can be done with documents and other evidence the FBI seized from Cohen in raids last week.
The hearing is still going on, but it’s already made some news — Cohen’s lawyers were forced to disclose the name of a client Cohen was trying to keep secret: Fox News host Sean Hannity.
Trump, Hannity, and former RNC fundraiser Elliott Broidy were Cohen’s only legal clients since Cohen left the Trump organization in January 2017. For both Trump and Broidy, Cohen arranged hush money payments to cover up sex scandals. It is not known what Cohen did for Hannity.
Cohen has not yet been charged with any crimes, and prosecutors haven’t publicly said what he’s under investigation for. (Reportedly it’s at least partly related to hush money payoffs he arranged during the presidential campaign.) Yet despite the absence of charges so far, Cohen and Trump are already pushing hard to try to block investigators from reviewing the evidence they seized — arguing that much of it should be protected by attorney-client privilege, which shields some communications between lawyers and their clients from prosecutorial scrutiny.
The Justice Department — specifically, prosecutors from the US attorney’s office for the Southern District of New York, or SDNY — currently plans to review the seized evidence with a separate “filter team,” walled off from the team actually working on the case. The filter team would separate out material that they think could be subject to attorney-client privilege and seek permission from either Cohen, Trump, other privilege holders, or the courts before handing over that material to the main investigative team.
But Cohen filed suit in federal court last week to try to block that review from happening — arguing that he himself should be able to review the seized material first and hand over only what he deems not to be privileged. Judge Kimba Wood of the Southern District of New York has been assigned the case.
And President Trump has hired a new attorney, Joanna Hendon, to back up Cohen. On Sunday, Hendon submitted a filing arguing that a judge should block the filter team process entirely and should instead hand over copies of everything seized to Cohen for his review.
SDNY, however, has said that they are adhering to “common practice” for matters like this, and following “rigorous protocols” by using a filter team. They say they found probable cause that the places they searched and the devices they’ve seized contained evidence of potentially criminal conduct by Cohen himself — something that attorney-client privilege would not protect. They’ve fired back at Trump, too, writing Monday morning that “the President’s proposal” to block their review “would set a dangerous precedent.”
The background to Monday’s Michael Cohen court hearing
The full story of why, exactly, SDNY is investigating Michael Cohen remains shrouded in mystery. Since he hasn’t been charged with anything, even the crimes he’s under investigation for have been redacted in the government’s filings. The evidence justifying the warrant and raids hasn’t been publicly disclosed either.
We have, however, learned some bits and pieces from SDNY’s filings:
- Cohen, they say, “is being investigated for criminal conduct that largely centers on his personal business dealings” and “finances.”
- This investigation has been underway for months with a New York grand jury — meaning that it’s separate from special counsel Robert Mueller’s Russia probe.
- Previously, investigators had secretly obtained search warrants “on multiple different email accounts maintained by Cohen,” and have already had a filter team review them for privileged material.
- They claim they were worried “records could have been deleted” if they hadn’t carried out the raids — but they’ve redacted their explanation for why specifically they had this worry.
Additionally, various media outlets have reported that investigators were searching for the following materials in the raid (though there could be more):
- Information on Cohen’s payment of $130,000 to Stormy Daniels
- Information Cohen might have on a payment of $150,000 to Karen McDougal, shelled out by the National Enquirer’s parent company
- Communications between Cohen and Keith Davidson, the lawyer for Daniels and McDougal
- Information on a potential effort to prevent the release of the Access Hollywood “grab ’em by the pussy” tape
- Cohen’s communications with Trump, and other Trump associates, about “potential sources of negative publicity” before the election
- All communications between Cohen and two top National Enquirer figures, David Pecker and Dylan Howard
- Possible bank fraud, wire fraud, and campaign finance violations
- Information about taxi medallions Cohen owns
The argument over attorney-client privilege
Trump and those close to him have responded to the raid on Cohen with fury and panic. The president called it an “attack on our country.” Clearly, he does not want investigators to look at what they took from Cohen. But he’s framed his public objections in terms of “attorney-client privilege”:
Attorney–client privilege is dead!
— Donald J. Trump (@realDonaldTrump) April 10, 2018
But though pop culture may have led you to think that all of a client’s communications with his or her lawyer are de facto shielded by “attorney-client privilege,” that is not actually the case.
“Attorneys are not magic sorcerers. Merely having one in the room or on the phone does not automatically mean that anything that is said in that room or during that conversation is protected by the attorney-client privilege,” Loyola law school professor Jessica Levinson told my colleague Sean Illing last year for his roundup expert opinion on the topic.
For instance, communications that aren’t about legal advice would not be shielded. Communications that include people other than just the attorney and his client would also not necessarily be shielded. Additionally, communications in which the attorney helps the client commit a crime or fraud (rather than giving legal advice about what the client did) <a target=_self …read more