Donald Trump’s attorney seeks to go through seized evidence to pull ‘privileged’ materials

After months of investigation for bank and wire fraud, last Monday the FBI raided the home, office, hotel room and even the safety deposit box of Michael Cohen, Donald Trump’s longtime personal attorney. An unknown number of documents, audio recordings and emails were seized. Prosecutors tapped a “taint team” to go through the evidence to determine what is covered by attorney-client privilege and what can be turned over to the prosecution, an extraordinarily cautious move to protect everyone involved.

Late Sunday night, Donald Trump’s new attorney, Joanna Hendon, asked U.S. District Judge Kimba Wood to grant a highly unusual request—let Michael Cohen pour through it all to pull any evidence they consider to be off-limits due to attorney-client privilege. From the Washington Post:

She added that “the president respectfully requests” that the judge issue an order barring the taint team from conducting an initial review of the seized material and require the government to turn over a copy of that material to Cohen’s lawyers.

Then, the president wants the court to direct Cohen “to identify to the president all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel,” according to the letter. Any disputes about what material was or wasn’t covered by the attorney-client privilege would then be decided by a judge, under the president’s proposal.

LOL! They want the person under criminal investigation to have the ability to go through the evidence that was lawfully seized in a criminal investigation and keep it from prosecutors under a pinky swear it is covered by attorney-client privilege. On Friday, prosecutors went hard, telling Judge Wood that Michael Cohen may not be a lawyer at all. From CNBC:

But the prosecutors say they have already conducted searches of Cohen’s email accounts, “covert until this point,” which they say “indicate that Cohen is in fact performing little to no legal work, and that zero emails were exchanged with President Trump.” […]

“(1) Cohen did not have an email address associated with the firm; (2) Cohen did not have access to the firm’s shared drives or document systems—and vice versa; (3) Cohen’s documents were to be kept in a locked filing cabinet; and (4) Cohen did not have access to any of the firm’s client files.”

Both Michael Cohen and Donald Trump are fighting like hell to keep that evidence from prosecutors. Trump, who claimed to know nothing of the Stormy Daniels payment under investigation, has been lashing out on Twitter.

From a former U.S. attorney, a break down of the unusual requests from Cohen and Trump’s attorneys.

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.

— Renato Mariotti (@renato_mariotti) April 16, 2018

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.

— Renato Mariotti (@renato_mariotti) April 16, 2018

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.

— Renato Mariotti (@renato_mariotti) April 16, 2018

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.

— Renato Mariotti (@renato_mariotti) April 16, 2018

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.

— Renato Mariotti (@renato_mariotti) April 16, 2018

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.

— Renato Mariotti (@renato_mariotti) April 16, 2018

14/ Only communications regarding legal advice are privileged, and even those communications can lose their privilege if they’re furthering a crime.

— Renato Mariotti (@renato_mariotti) April 16, 2018

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

— Renato Mariotti (@renato_mariotti) April 16, 2018