Lawyers for President Donald Trump and his longtime personal attorney Michael Cohen went to court Friday trying to stop federal prosecutors from getting at private material — but wound up with a judge ordering them to disclose Cohen’s client list in public.
U.S. District Judge Kimba Wood on Friday ordered attorneys for Cohen to hand over a list of Cohen’s law clients and proof of their relationship by 10 a.m. Monday, so she can decide whether materials seized from Cohen’s office by federal law enforcement agents last week should be protected by attorney-client privilege.
That list will be a public record, Wood said, because the identities of an attorney’s clients are not subject to attorney-client privilege unless the mere name itself would reveal the kind of advice sought or given.
Wood’s order raises the possibility of further embarrassing disclosures involving Cohen, who is already at the center of a legal dispute involving adult-film actress Stormy Daniels, who is suing the president to void a nondisclosure agreement negotiated by Cohen concerning a sexual encounter Daniels says she had with Trump in 2006.
The Wall Street Journal has reported that Cohen was also involved last year in negotiating a $1.6 million payment to a Playboy Playmate who said she was impregnated by prominent Los Angeles investor and Republican fundraiser Elliott Broidy.
Cohen is among Trump’s most loyal aides and advisers, a lawyer who lives in one of Trump’s buildings and worked for the Trump Organization, where he rose to a level of seniority held by few outside Trump’s family.
FBI agents overseen by the U.S. attorney’s office in Manhattan raided Cohen’s Rockefeller Center office, Park Avenue apartment, and a hotel room Cohen was using earlier this week, seizing documents, devices and other materials. Prosecutors said in court filings that Cohen is under criminal investigation, but no charges have been filed.
The raid triggered an immediate escalation in Trump’s war on special prosecutor Robert Mueller, whose probe into the Trump campaign’s collusion with Russia in the 2016 campaign has expanded to include questions of whether Trump or people close to him tried to obstruct justice.
The president subsequently complained about the raid during a White House meeting, at which he told reporters that agents “broke into the office of one of my personal attorneys.”
The president later tweeted “A TOTAL WITCH HUNT!!!” He added: “Attorney-client privilege is dead!”
Sometime prior to Monday’s physical searches of Cohen’s home, office and hotel room, investigators seized emails from “multiple different email accounts” maintained by Cohen, the new court filing revealed. Prosecutors suggested they had completed a review of potential attorney-client material in those accounts.
“The results of that review … indicate that Cohen is in fact performing little to no legal work, and that zero emails were exchanged with President Trump,” assistant U.S. attorney Thomas McKay and other prosecutors wrote.
Portions of a court filing detailing what potential offenses Cohen is being investigated over were blacked out of the copy the court made public, but prosecutors said the potential crimes involve “fraud and evidence of a lack of truthfulness.”
McKay and other government lawyers challenged Cohen’s claims of attorney-client privilege, saying his law practice was far from bustling.
“Cohen’s claim that he has confidential communications with multiple clients appears to be exaggerated. For example, Cohen has told at least one witness that he has only client — President Trump,” prosecutors wrote.
Government lawyers also suggested Trump’s lack of computer savvy makes it unlikely there are many emails from him.
“Cohen apparently rarely emailed with President Trump, and has identified no other clients with whom he has an attorney-client relationship,” they said.
Prosecutors said the files are unlikely to contain attorney-client communications with Trump about an alleged pre-election $130,000 hush money deal with adult film actress Stormy Daniels, since Trump claims he didn’t know about the payment.
“There is reason to doubt that even communications with his only publicly identified client regarding payments to Stephanie Clifford, who is also known as Stormy Daniels, would be protected by attorney-client privilege. Among other things, President Trump has publicly denied knowing that Cohen paid Clifford, and suggested to reporters that they had to ‘ask Michael’ about the payment,” the government lawyers wrote.
Prosecutors also suggested Cohen was exaggerating the significance of his affiliation with the prominent Washington legal and lobbying firm Squire Patton Boggs. Cohen and the firm announced a “strategic alliance” last year, but prosecutors say information they obtained from Squire Patton Boggs suggests the arrangement yielded little.
“A representative of the firm also advised … that for the duration of the Agreement, Cohen introduced a sum total of five clients to the firm,” prosecutors wrote.
After word of the search warrants emerged this week, the firm said it was cooperating with investigators and the arrangement with Cohen has ended. Prosecutors said the deal, which called for Cohen to receive $500,000 a year from the firm along with a percentage of fees charged, formally ended March 2.
Prosecutors argued that Cohen’s limited number of clients suggests that many of the records seized Monday, including information from a safe-deposit box, are unlikely to contain attorney-client communications. The government lawyers contend this distinguishes Cohen’s situation from another in New York in 2002, in which a judge did require a court-appointed special master to sift through files seized from the office of well-known criminal defense attorney Lynne Stewart.
Stewart had numerous clients facing prosecution by the U.S. attorney’s office, while Cohen isn’t a criminal defense lawyer, prosecutors noted.
Wood said at Friday’s hearing that she wanted to see the list of Cohen’s clients because Cohen’s attorneys claimed the materials seized in the FBI raid “contain thousands if not millions of documents that are protected by attorney-client privilege,” which the attorneys said would require a special review process.
Wood expressed skepticism earlier in the day Friday about that claim and gave Cohen’s attorneys about an hour to produce some evidence to back it up. Cohen’s lead counsel, Todd Harrison, said he had not actually seen any of the materials that were seized and Cohen himself was not in court Friday to offer any evidence to substantiate the argument.
Wood also ordered Cohen, who did not attend Friday’s hearings, to appear before her in person Monday at 2 p.m,. when she will hear arguments from his attorneys and the government about whether or not to grant a temporary restraining order Cohen sought late Thursday evening to prevent prosecutors from accessing documents, devices and other materials gathered by investigators.
Lawyer Joanna Hendon, a lawyer appearing on Trump’s behalf, declared that the president “has an acute interest in this matter.”
Trump lawyer Jay Sekulow said Hendon’s firm, Spears & Imes, is representing the president with respect to the attorney-client issues raised by the Cohen case.
“What’s at stake? The viability of this prosecution. It has to be done right. He is the president of the United States,” Hendon added in court.
Hendon cited the “exceptional nature of my client” as she sought to delay the court proceedings until Monday.
“This is of utmost concern to him,” she said. “I think the public comes a close second. I think anyone who’s ever hired a lawyer is a close third.”
Prosecutors countered that the president is no different from any other client. “With respect, his attorney-client privilege is no different from anyone who’s seeking legal advice,” said Assistant U.S. Attorney Thomas McKay, who oversees the public corruption unit for the Southern District of New York.
At the early afternoon session, McKay complained that Cohen’s attorneys are trying to “use attorney client privilege like a sword.”
Harrison, Cohen’s lead counsel, told the court that prosecutors seized thousands of privileged documents, but Wood sounded skeptical, noting that Harrison hasn’t seen what’s in the FBI’s haul.
Cohen told CNN in an interview Tuesday: “I am unhappy to have my personal residence and office raided. But I will tell you that members of the FBI that conducted the search and seizure were all extremely professional, courteous and respectful. And I thanked them at the conclusion.”
The New York Times reported that Trump had called Cohen on Friday. White House press secretary Sarah Sanders said at her briefing with reporters that she wasn’t certain whether Cohen remains a personal lawyer for the president. “I’m not sure,” Sanders said. “I’d have to check.”
Cohen has been deeply drawn into the legal drama between Trump and Daniels, whose legal name is Stephanie Clifford. The lawyer, through an LLC, paid Daniels $130,000 as part of the non-disclosure agreement surrounding her alleged affair with Trump but Cohen has said Trump was never aware of the payment. The president, too, has said he did not know of the payment and has denied the affair with Daniels.