UPDATE: Late Friday afternoon U.S. District Judge Kimba Wood ruled Michael Cohen, President Trump and the Trump Organization must file public responses to the special master’s privilege determinations. Only sections that divulge the content of contested evidence may be filed under seal.
On the day after federal investigators raided the homes and office of his longtime lawyer Michael Cohen, President Donald Trump tweeted, “Attorney-client privilege is dead.” It’s not.
Cohen, who has not been charged with any crime, is under investigation by the U.S. attorney’s office in Manhattan.
The investigation stems in part from a referral by Special Counsel Robert Mueller, who is probing whether Trump’s 2016 presidential campaign colluded with Russia. Trump has repeatedly said there was no collusion, and Russia has denied interfering in the U.S. presidential elections.
Cohen has worked for Trump for more than a decade, first as counsel at the Trump Organization and later as his personal lawyer.
To safeguard privileged evidence seized from Cohen, U.S. District Judge Kimba Wood of Manhattan appointed a special master, former federal judge Barbara Jones, to review all of the documents and electronic materials obtained in the raid. This week, Jones submitted a report on her work to date. She found 14 Cohen documents (of the 639 she reviewed) and 148 pieces of electronic evidence (of 291,770 she reviewed) to be privileged or partially privileged. Jones deemed seven electronic items to be highly personal.
We don’t know anything more about that evidence – and Michael Cohen, President Trump and the Trump Organization want to keep it that way. On June 6, the president’s lawyers at Spears & Imes sent a letter to Judge Wood, asking to file its response to the special master under seal and ex parte, for the judge’s eyes only. The letter, signed by Spears partner Joanna Hendon, acknowledges the presumptive public right of access to court documents but said the public interest is outweighed by two competing factors: the federal rule of criminal procedure that imposes strict confidentiality over grand jury materials and the abiding interest in preserving attorney-client and work-product privilege. As Hendon pointed out, Judge Wood herself cited both factors in open court in April, when she heard arguments from Cohen and the government about how to segregate privileged documents.
Prosecutors oppose wholesale sealing of responses to the special master’s recommendations. In a June 7 letter, Deputy Manhattan U.S. Attorney Robert Khuzami said the government does not object to redaction of purportedly privileged evidence, nor even to ex parte submission of sensitive material. But Khuzami said there is “no reason” why the government and the public should be deprived of access to legal arguments spelled out in briefs by Cohen, Trump and the Trump Organization. He also said Cohen and Trump cannot rely on grand jury secrecy because the disputed evidence was obtained via a search warrant.
News organizations (my own not included) urged Judge Wood to allow the public to see as much of the litigation over purportedly privileged evidence as possible. Their letter, from lawyers at Davis Wright Tremaine, argues that public access is the bedrock of public confidence in a proceeding of “intense public interest and importance to our nation.” Davis Wright called the wholesale seal requested by Cohen and Trump “extraordinary” and “needlessly overbroad.” The media group’s letter cited 2012’s Equal Employment Opportunity Commission v. Kelley Drye, in which Judge Wood’s Manhattan federal court colleague Laura Taylor Swain carved out privileged documents from a broad order unsealing evidence introduced in summary judgment briefing in the EEOC’s age discrimination suit against the law firm. Sealing orders, the letter said, must be narrowly tailored to balance privilege and public access.
The news organizations contend the government’s proposal to redact information about specific, sensitive documents but allow public access to legal arguments and case citations seems reasonable. I agree – and I bet Judge Wood will also.
The judge has already shown her concern for public access at hearings in this case. If you recall, she forced Cohen’s lawyers at McDermott Will & Emery to disclose in open court that Cohen regarded Sean Hannity of Fox News as a client. (Hannity said he did not ever retain Cohen in a traditional sense.) Judge Wood has served on the court’s Media Access Committee, which solicits comments from courthouse reporters about how to make the courts more open. And she’s not likely to buy arguments that grand jury secrecy shields everything in the Cohen case. As the media organizations pointed out in their letter on Thursday, in a 2015 ruling in the bribery case against New York politician Dean Skelos, Judge Wood refused to order a hearing on Skelos’ allegations that prosecutors had breached grand jury secrecy. The grand jury confidentiality rule, she wrote, “does not apply to disclosures of information obtained independently of the grand jury process, even if the same information might later be presented to the grand jury.”
The overwhelming body of evidence in the Michael Cohen case appears not to be shielded by any privilege. If Cohen and his onetime clients want to argue otherwise, in a matter implicating the president of the United States, they ought to be required to explain their theories in public.
I emailed Trump counsel Joanna Hendon to ask about the government’s alternative proposal but didn’t hear back.
The views expressed in this article are not those of Reuters News.