1/ In a new legal filing tonight, President Trump's lawyers argue that they should be able to review Michael Cohen's computers to separate out files that they think are covered by the attorney/client privilege so the government doesn't see them. drive.google.com/file/d/1mqr11-…
April 16, 2018Trump
President Donald Trump is responding to the raid on the office of his attorney, Michael Cohen, by making arguments reminiscent of another Republican president with whom he probably doesn't want to be associated — President Richard Nixon.
On an immediate level, this may seem like a simple case of Trump and Cohen grasping at straws to conceal whatever they feel might be legally damaging to them in Cohen's documents. It is unlikely that the presiding judge will allow them to effectively transform the search warrant into a subpoena — which is what the pair are essentially requesting, when they ask to be able to go through the documents to remove anything that might be protected by attorney/client privilege.
But there is an aspect of this that is positively Nixonian in nature. When Nixon was ordered by special prosecutor Archibald Cox to turn over tapes of secret recordings he had made of White House conversations, the president refused. When the U.S. Court of Appeals ruled that Nixon had to comply with Cox's request, the president attempted to craft a deal with Attorney General Elliot Richardson that would allow him to review what was in the tapes first, summarize their contents to a federal judge and then allow Sen. John Stennis (who, despite being a Democrat from Mississippi, was not unsympathetic to Nixon) to listen to the recordings and independently verify that Nixon had not left anything important out of them.
The Nixon camp had claimed this was to protect matters of interest to national security. But although Richardson agreed to the compromise, Cox did not, and Nixon ordered him fired. What followed was the "Saturday night massacre": Richardson resigned instead of following through on the unconstitutional order; Deputy Attorney General William Ruckelshaus likewise resigned instead of doing so, so the job of firing Cox was ultimately left to U. S. Solicitor General Robert Bork — whose actions served as the argument against his confirmation to the Supreme Court 14 years later.
Which brings us to 2018. Both Nixon and Trump have said they should have the right to review documents seized in order to investigate potential criminal activity, and cited legal rights that may not apply to their situations. For Nixon, it was executive privilege; for Trump and Cohen, it is attorney-client privilege. The courts found that Nixon's argument was invalid, and they're now looking at Trump's claims.
When Nixon was invoking his privilege, the former president was trying to hide something — a so-called "smoking gun" in which Nixon was heard asking his officials to try to convince the CIA to request that the FBI stop investigating the Watergate burglary on the grounds of national security (that just happened to be the same logic Nixon used to try to keep the tapes from Cox).
Special prosecutor Leon Jaworski concluded that, by doing this, Nixon had entered into a criminal conspiracy to obstruct justice.
We don't know what Michael Cohen has. Maybe the information could pertain to the payment made to porn star Stormy Daniels to cover up her alleged affair with Trump — or to other women with whom the president may have been romantically involved. It also could pertain to the ongoing probe into possible collusion between the Trump campaign and Russian government officials. Or both.
Nixon was convinced that the investigation into his actions was politically motivated — or, at the very least, that the accusation of partisan bias was enough for Republicans to discredit it. Just as Nixon claimed that the Watergate scandal had been cooked up by his political enemies, Cohen's court filing argued that "the appointment of a Special Master will protect the integrity of the Government's investigation from the toxic partisan politics of the day and attacks on the impartiality of the Justice Department and USAO."
A legal filing from the firm McDermott, Will & Emery also mentioned that "as the Court is surely aware, there is a growing public debate about whether criminal and congressional investigations by the government are being undertaken impartially, free of any political bias or partisan motivation."
One thing is clear, though. Presidents like Nixon and Trump don't ask to cherry pick what the people investigating them can see because they fear it will make themselves look too good. The fact that this request is even being made strongly suggests that Trump and Cohen know they will find themselves in big trouble. The only question is what the trouble will be and why.
Meanwhile, a pair of legal experts sounded off on the Trump's lawyers' demands to review Cohen's computers, and explained just why Trump's request was so odd.
First there was Professor Orin Kerr of the University of Southern California's Gould School of Law.
1/ In a new legal filing tonight, President Trump's lawyers argue that they should be able to review Michael Cohen's computers to separate out files that they think are covered by the attorney/client privilege so the government doesn't see them. drive.google.com/file/d/1mqr11-…
2/ Cohen made a similar argument last week, and Trump has now intervened. I'm not aware of a client ever being able to conduct the first review of whether a lawyer's files are privileged. And for an obvious reason: If the files sought involve an alleged crime/fraud, the client
2/ Cohen made a similar argument last week, and Trump has now intervened. I'm not aware of a client ever being able to conduct the first review of whether a lawyer's files are privileged. And for an obvious reason: If the files sought involve an alleged crime/fraud, the client
3/ will say that those e-mails are privileged. Trump in effect wants the warrant to be executed like a subpoena to him personally, in which he gets to decide what the government sees. But that's not how it's done: the point of using a search warrant is to block that. Trump's
3/ will say that those e-mails are privileged. Trump in effect wants the warrant to be executed like a subpoena to him personally, in which he gets to decide what the government sees. But that's not how it's done: the point of using a search warrant is to block that. Trump's
4/ argument is that as the client, he is uniquely situated to understand the documents and uniquely incentivized to respect the A/C privilege. But the law's goal here is to have a neutral assessment of what is privileged, not an incentivized one. Trump also relies on the Martha
4/ argument is that as the client, he is uniquely situated to understand the documents and uniquely incentivized to respect the A/C privilege. But the law's goal here is to have a neutral assessment of what is privileged, not an incentivized one. Trump also relies on the Martha
5/ Stewart case, in which (as he notes on p3) the defendant was given a copy of the the files so she could also review the docs for privilege. But at least as I read the Stewart case, in that case the court appointed a neutral special master to review the materials, with both
5/ Stewart case, in which (as he notes on p3) the defendant was given a copy of the the files so she could also review the docs for privilege. But at least as I read the Stewart case, in that case the court appointed a neutral special master to review the materials, with both
6/ the govt and defense getting a copy so they could make objections to the special master's recommendations that were then reviewed de novo (without deference) by the trial judge. That's not the defense doing the review; that's both sides getting to weigh in on the special
6/ the govt and defense getting a copy so they could make objections to the special master's recommendations that were then reviewed de novo (without deference) by the trial judge. That's not the defense doing the review; that's both sides getting to weigh in on the special
7/ master's recommendations, and ultimately, on what the presiding judge thinks is correct. Anyway, that's my quick sense of things. Oh, and although I long ago read the cases on reviewing files in the A/c priv context, it has been a long time, and I'm not an expert on this.
7/ master's recommendations, and ultimately, on what the presiding judge thinks is correct. Anyway, that's my quick sense of things. Oh, and although I long ago read the cases on reviewing files in the A/c priv context, it has been a long time, and I'm not an expert on this.
8/ Also note that Trump is not claiming that his legal team will get the last word. He proposes that his team gets the first cut, and tells the government about what has been withheld; the government can challenge Trump's designation, and the court will decide. From the brief: pic.twitter.com/XpVb3mrUEY
8/ Also note that Trump is not claiming that his legal team will get the last word. He proposes that his team gets the first cut, and tells the government about what has been withheld; the government can challenge Trump's designation, and the court will decide. From the brief: pic.twitter.com/XpVb3mrUEY
9/ I see that @renato_mariotti is tweeting a thread on the same topic now, too. At least so far (#13) we're on the same page. Renato has more and more recent experience on this than I do, so check out his thread, too, if you've read so far here. twitter.com/renato_mariott…
9/ I see that @renato_mariotti is tweeting a thread on the same topic now, too. At least so far (#13) we're on the same page. Renato has more and more recent experience on this than I do, so check out his thread, too, if you've read so far here. twitter.com/renato_mariott…
10/ One additional thought. It is supremely weird that this filing came not from some random suspect in a random fraud case but from the President of the United States.
Then there was former federal prosecutor and current candidate for Illinois Attorney General Renato Mariotti.
THREAD: What should we make of the filing by Trump’s lawyers demanding that Trump be permitted to review the documents seized by the government and remove any he believes are privileged? twitter.com/big_cases/stat…
THREAD: What should we make of the filing by Trump’s lawyers demanding that Trump be permitted to review the documents seized by the government and remove any he believes are privileged? twitter.com/big_cases/stat…
1/ The letter linked above was sent by Trump’s lawyers to the judge overseeing Cohen’s challenge to the prosecution’s seizure of documents from Cohen’s office, home, and hotel room pursuant to search warrants signed by a federal judge.
1/ The letter linked above was sent by Trump’s lawyers to the judge overseeing Cohen’s challenge to the prosecution’s seizure of documents from Cohen’s office, home, and hotel room pursuant to search warrants signed by a federal judge.
2/ As a starting point, Cohen’s challenge to the search warrants is extraordinary, and Trump’s intervention into Cohen’s legal action is even more unusual. It’s not clear that Trump has the right to challenge the government’s review of documents seized from Cohen at this stage.
2/ As a starting point, Cohen’s challenge to the search warrants is extraordinary, and Trump’s intervention into Cohen’s legal action is even more unusual. It’s not clear that Trump has the right to challenge the government’s review of documents seized from Cohen at this stage.
3/ Typically when the government executes a search warrant, the government uses a “taint team”—a group of lawyers walled off from the investigators—to deal with privilege issues. Taint teams often aren’t necessary but are required when a lawyer is involved.
3/ Typically when the government executes a search warrant, the government uses a “taint team”—a group of lawyers walled off from the investigators—to deal with privilege issues. Taint teams often aren’t necessary but are required when a lawyer is involved.
4/ Although searches of lawyer’s offices are unusual, there are established Justice Department procedures for handling them. Those procedures typically include using a taint team. On Friday, Cohen objected to using a taint team and asked to review the documents himself.
4/ Although searches of lawyer’s offices are unusual, there are established Justice Department procedures for handling them. Those procedures typically include using a taint team. On Friday, Cohen objected to using a taint team and asked to review the documents himself.
5/ As you can imagine, this was a non-starter for the prosecutors. The reason prosecutors obtained the search warrant is because they convinced a judge that there was good reason to believe Cohen committed a crime and evidence of the crime was in his office, home, and hotel room.
5/ As you can imagine, this was a non-starter for the prosecutors. The reason prosecutors obtained the search warrant is because they convinced a judge that there was good reason to believe Cohen committed a crime and evidence of the crime was in his office, home, and hotel room.
6/ If Cohen had the ability to go through the documents and remove documents he didn’t want the prosecution to see, he could abuse that by removing documents that prove his guilt.
6/ If Cohen had the ability to go through the documents and remove documents he didn’t want the prosecution to see, he could abuse that by removing documents that prove his guilt.
7/ The typical way that prosecutors obtain records in white collar cases is through subpoena, not search warrants. If the prosecutors sent Cohen a subpoena, he *could* have gone through the records on his own and removed some of them.
7/ The typical way that prosecutors obtain records in white collar cases is through subpoena, not search warrants. If the prosecutors sent Cohen a subpoena, he *could* have gone through the records on his own and removed some of them.
8/ Prosecutors typically use that process despite the risk because it’s more efficient and cost-effective for the prosecution. But in this case, they had a reason not to—they believed Cohen would not turn over everything. Using a search warrant takes Cohen out of the process.
8/ Prosecutors typically use that process despite the risk because it’s more efficient and cost-effective for the prosecution. But in this case, they had a reason not to—they believed Cohen would not turn over everything. Using a search warrant takes Cohen out of the process.
9/ That’s why Cohen’s request was so incredible—he was essentially asking the court to transform the search warrant into a subpoena, which doesn’t require the government to prove things to a judge. It is likely to fail. So what about Trump’s filing?
9/ That’s why Cohen’s request was so incredible—he was essentially asking the court to transform the search warrant into a subpoena, which doesn’t require the government to prove things to a judge. It is likely to fail. So what about Trump’s filing?
10/ Trump is essentially asking the judge for the same thing Cohen is—he wants the right to go through Cohen’s documents and pull out ones he believes are privileged. In a way, that’s even more unusual because the documents aren’t his, although he has an interest in them.
10/ Trump is essentially asking the judge for the same thing Cohen is—he wants the right to go through Cohen’s documents and pull out ones he believes are privileged. In a way, that’s even more unusual because the documents aren’t his, although he has an interest in them.
11/ In the letter, Trump’s lawyers cite no law, rule, or legal opinion that grants Trump the right to go through documents seized by the government pursuant to the search warrant. They’re essentially asking the judge to do so based on “fairness.” (The exact word they use.)
11/ In the letter, Trump’s lawyers cite no law, rule, or legal opinion that grants Trump the right to go through documents seized by the government pursuant to the search warrant. They’re essentially asking the judge to do so based on “fairness.” (The exact word they use.)
12/ Even if the judge had the power to do that—I’m not sure she does—I highly doubt she will. One thing she may do is appoint a neutral “special master” to review the documents to determine if they’re privileged. That person would be a “taint team” but appointed by the court.
12/ Even if the judge had the power to do that—I’m not sure she does—I highly doubt she will. One thing she may do is appoint a neutral “special master” to review the documents to determine if they’re privileged. That person would be a “taint team” but appointed by the court.
13/ Appointing a special master is not without precedent, but it wouldn’t get Cohen or Trump much as a practical matter. In a filing on Friday, prosecutors noted that they previously executed other search warrants on Cohen’s email accounts and found that he wasn’t practicing law.
13/ Appointing a special master is not without precedent, but it wouldn’t get Cohen or Trump much as a practical matter. In a filing on Friday, prosecutors noted that they previously executed other search warrants on Cohen’s email accounts and found that he wasn’t practicing law.
14/ Only communications regarding legal advice are privileged, and even those communications can lose their privilege if they’re furthering a crime.
14/ Only communications regarding legal advice are privileged, and even those communications can lose their privilege if they’re furthering a crime.
15/ If recent press reports are correct, the warrants sought communications between Trump and Cohen, which indicates that they were discussing a topic that relates to the crime under investigation by prosecutors.
15/ If recent press reports are correct, the warrants sought communications between Trump and Cohen, which indicates that they were discussing a topic that relates to the crime under investigation by prosecutors.
16/ As a practical matter, a special master won’t make determinations about privilege that will be much different from a “taint team.” Given that these communications were sought by the warrant, I’d expect prosecutors will obtain what they were looking for. /end
