Trump Document Review Would Set Dangerous Precedent, Prosecutors Say
U.S. President Donald Trump’s request to review documents seized from his lawyer would set a “dangerous precedent” that might hinder future investigations of attorneys suspected of criminal wrongdoing, federal prosecutors told a judge.
U.S. District Judge Kimba Wood on Monday will consider Trump’s extraordinary request to let the president’s attorneys conduct the document review for information protected by attorney-client privilege before Justice Department lawyers can look at it.
“Under the president’s theory, every person who has communicated with a lawyer would be given the power to turn every search warrant into a subpoena and to demand the return of lawfully seized evidence,” the prosecutors wrote in a letter Monday. “Such a rule is unworkable and ripe for abuse.”
Trump’s personal lawyer, Michael Cohen, says the review should be conducted by a court-appointed attorney. In response to government claims that his only real client in recent years has been the president, Cohen said he gave legal advice to three people in the past year, including Trump and Elliott Broidy, the former deputy finance chairman of the Republican National Committee. Cohen declined to identify the third client.
Cohen’s due to appear at Monday’s hearing as the judge wrestles with who should get the first crack at reviewing materials seized in the FBI’s April 9 raid on his office, home and hotel room.
On Sunday, the president’s attorneys filed court papers saying some material seized may involve privileged communications between Trump and Cohen. Prosecutors want a separate group of government lawyers to review the material first and determine what’s covered by the attorney-client privilege.
“In the highly politicized, even fevered atmosphere that envelops this matter, it is simply unreasonable to expect that a team of prosecutors, even if not directly involved in the separate investigation of Mr. Cohen, could perform a privilege review in the manner necessary to safeguard the important interests of the president,” Trump’s attorney, Joanna Hendon, wrote in an eight-page letter to the judge.
In his filing, Cohen identified lawyers at five different firms who have provided legal advice to him in the past year. Broidy, one of the three clients Cohen identified, resigned from the Republican National Committee on Friday after it was disclosed that he paid $1.6 million to a Playboy Playmate with whom he had an extramarital affair. She became pregnant and chose to have an abortion. Cohen negotiated the nondisclosure agreement with the woman.
The legal maneuvering are the latest twists in parallel U.S. investigations that Trump has assailed as a “witch hunt.” In Washington, Special Counsel Robert Mueller is looking into possible ties between the Trump campaign and Russian interference in the 2016 election, while the U.S. attorney in New York has opened an investigation of Cohen’s activities. Trump’s aides consider the Cohen inquiry, which has been underway for several months, to pose the greater threat to the president, the New York Times reported April 13.
“The question now before the court is, who should perform the initial review of the seized materials to assess whether they are, or are not, subject to a valid claim of privilege,” Hendon wrote. The choice is between a “team consisting of colleagues of the prosecutors assigned to this investigation, or the president, who is the holder of the privilege.”
At a court hearing on Friday, Cohen’s lawyers estimated that the evidence seized by the FBI includes “thousands, if not millions” of documents protected by the attorney-client privilege, including communications with Trump and with other Cohen clients not involved in the investigations. They also invoked the work-product privilege, which protects material prepared by a lawyer in the course of legal representation.
Prosecutors argued in their own filing Friday that the investigation of Cohen focuses on his private business dealings and that evidence uncovered so far indicates Cohen has done “little to no legal work.” They want the separate group of prosecutors, or a so-called taint team, to review the seized documents to weed out any that might be covered by the privilege. The privilege doesn’t cover communications in furtherance of a crime.
In their filing on Sunday night, Trump’s lawyers said a taint team won’t be fair to the president. Prosecutors “already pre-judged the matter of privilege, repeatedly urging that few privileged documents are likely to be found,” according to the filing. The “disinclination” to find privilege is “a bias that virtually guarantees that there will not be a fair privilege review of the seized materials.”
Prosecutors in New York haven’t identified what specifically they’re probing, although they said in a court filing that “the crimes being investigated involve acts of concealment by Cohen.’’ The Washington Post has said prosecutors are investigating possible wire fraud, bank fraud and campaign finance violations.
In a courtroom sure to be standing-room-only, Cohen will also encounter the adult-film actress Stormy Daniels. She is suing Trump and Cohen to void a non-disclosure agreement she signed with a company set up by Cohen just before the election. Trump has denied having had a relationship with Daniels and said he didn’t know where Cohen got the money. Cohen says he paid the money on his own and wasn’t reimbursed.
Cohen’s lawyer has said that Mueller referred some of the evidence uncovered in his investigation to prosecutors in New York. After the FBI raid on Cohen, Trump stepped up his criticism of Mueller. His spokeswoman, Sarah Sanders, told reporters that the president has the authority to fire Mueller on his own.