The U.S. Attorney’s Office for the Southern District of New York has just submitted a filing that eviscerates President Trump, legally speaking.
The USAO-SDNY’s letter on Monday was a response to Trump’s effort to back personal attorney Michael Cohen’s desperate bid for a temporary restraining order. Both Cohen and Trump want to block federal investigators from reviewing the fruits of expansive searches executed against Cohen’s offices, electronics, and hotel room last Monday. Judge Kimba Wood granted Trump’s motion to join Cohen’s suit against the United States as an “intervenor,” or other party with interests involved, on Friday.
The President’s letter (the “Letter”) makes substantially the same arguments already made by Cohen, and does not—and cannot—justify the relief he seeks: namely, to block the government from carrying out a judicially-approved search, and for the President and his counsel to themselves act as a privilege screen for all materials lawfully seized by the government from Cohen’s premises that “relate [to the President] in any way.” Granting such relief would mark a serious departure from the accepted, normal practices of this District and erect an unprecedented and unwarranted obstacle to the government’s ability to investigate attorneys for their own conduct, in this case or any other.
[T]he Court should permit the USAO-SDNY to review the evidence lawfully seized pursuant to judicially-authorized search warrants, consistent with a rigorous Filter Team protocol that is common practice in this District.
USAO-SDNY then walks through a set of solid objections to Trump’s efforts.
First, despite the Court’s invitation to the President to make “any arguments that are different from those made by Mr. Cohen,” he has not done so. The closest the President comes to making a new argument is his assertion that the cases cited by the USAO-SDNY are distinguishable because none involves documents seized “pursuant to a search of a lawyer’s office [where] the privilege-holder objects to a taint team procedure.” That is an immaterial distinction.
“Immaterial distinction” = fighting words.
None of the cases cited by the President attaches any significance to whether it is the privilege-holder or his attorney asserting an objection. That is unsurprising, because, as the Court recognized at Friday’s hearing, “[i]t appears to me that the [President’s] interests are completely parallel with those of Mr. Cohen.” The President has offered no reason why that would be different here, where Cohen has asserted the privilege on his behalf.
The only thing Trump and Cohen don’t agree on is Cohen’s notion that a “special master,” or single person, could be given the task of reviewing seized materials.
The USAO letter pointedly notes that Trump is arguing for a solution—his lawyers get to review the documents before anyone else—that doesn’t exist in law or precedent.
[D]espite advancing the extreme position that he should review the lawfully-obtained files in the first instance, the President still cannot identify a single case in which a court has ordered such a remedy, and for good reason—the President’s proposal would set a dangerous precedent.
As Michael Avenetti pointed out on Twitter, if that proposal seems familiar it could be because it’s a throwback to the last time a president got in trouble over recordings. Avenetti, of course, is representing Stormy Daniels in her suit against Cohen to invalidate the non-disclosure agreement Cohen negotiated to prevent her from discussing her alleged affair with Trump.
As the USAO’s letter makes clear, Trump’s argument is absurd as a matter of common sense.
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 in order to undertake their own review of the evidence. Such a rule is unworkable and ripe for abuse.
Then there’s the fact that, despite having argued that his interests are implicated, Trump has not actually pointed to any specific, material-related concerns.
While the President advances this proposal, he offers no information regarding the scope of any privileged communications between himself and Cohen that were potentially seized. As previously stated, the results of USAO-SDNY’s search warrants on multiple email accounts used by Cohen revealed zero communications between Cohen and the President. The President’s letter does not address this. Although Cohen and the President may have had an attorney-client relationship, the President’s failure to proffer facts supporting his assertion that privileged communications were seized is significant, because the President asks that all of the seized materials be turned over to Cohen—not just those relating to the President.
Then there’s the part where Trump’s lawyers are getting procedure wrong. Maybe they’re being disingenuous; maybe they’re just that bad.
Second, the President appears to misunderstand the USAO-SDNY’s proposed review protocol when he states that “as to those communications between Mr. Cohen and his acknowledged clients, the taint team would immediately release all such communications to the Investigative Team that it concludes are ‘not privileged,’ again without any input from the privilege-holder.” This is wrong. As set forth in our prior brief, for any communications between Cohen and a client, the USAO-SDNY would (1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to privilege; (2) bring the document to a court for an ex parte determination if appropriate; or (3) if the document is of obviously minimal probative value, place the document into the “Privileged” category as a means of efficiently completing the review.
USAO-SDNY “emphasizes” that, unless an explanation for not extending privilege to a document would “jeopardize a covert aspect of the investigation,” Trump & Co. will get a shot at arguing it should be privileged before it goes to prosecutors.
That “unless” really matters. The big reason a document that would otherwise be privileged might not qualify? If it’s evidence of ongoing criminal activity. Documents like that could go to the judge first in an ex parte communication, or one-sided communication, without notice to Cohen and Trump.
Cohen and Trump have also been “invited” to let SDNY know if there are any clients, names, or search terms they want to flag as likely connected to attorney-client privilege.
Finally, USAO-SDNY notes, the taint team—also referred to in the filing as “the Filter Team”—is reliable not just as an abstract ethical matter, but because no one wants to get sued for screwing up.
USAO-SDNY effectively dismisses the rest of Trump’s arguments as metaphorical windmill-tilting. He raises the same objections anyone else might come up with to the use of a Filter Team—they don’t know enough!—and every one of them has already been offered and resolved. In short, Filter Teams are an established means of protecting attorney-client privilege, and Trump has not distinguished his case in any relevant way from the cases that establish that precedent.
Although it’s not likely to reassure Trump, the government also promises that in the unlikely event the Filter Team does fail to hold back something privileged, investigators are bound to record their exposure to that document, send it back to the Filter Team, and report the incident.
[T]he risk of inadvertent production of a potentially privileged document to the Investigative Team is particularly remote here, where—on top of its other rigorous procedures previously outlined for the Court—the Filter Team will review every document twice before it is released to the Investigative Team.
USAO-SDNY saves most obvious arguments for last: Letting Trump and Cohen have the first shot at reviewing the documents is putting the fox in charge of the hen house.
Third, the President’s proposal would place the responsibility for making an initial review of the material into the hands of a party with an incentive to make overbroad claims of privilege.
In fact, notes the USAO, Trump's admitted he’d try to argue for pretty much everything to be privileged.
“We consider each and every communication by, between, or amongst Mr. Cohen and the Trump Organization and each of its officers, directors, and employees, to be subject to and protected by the attorney-client privilege and/or the work-product privilege”
It’s also ridiculous to claim that the USAO’s prior brief somehow proved that office could not ensure a fair review. That amounts to saying: because you think I’ve done something wrong, you can’t have anything to do with finding out if I did something wrong. That’s not how the criminal justice system works.
The other problem with leaning heavily on attorney-client privilege, of course, is that USAO-SDNY has been careful to emphasize their focus on Cohen’s business dealings. Besides, one thing surveillance revealed is that Cohen’s doing “little to no legal work,” just business dealings.
Our prior brief explained that the investigation relates in large part to conduct by Cohen in his personal business and financial dealings, which have nothing to do with any legal practice he may have.
Trump claims that the Filter Team detracts from “the appearance of fairness and justice.” It’s because Trump is president, not despite it, that the use of a Filter Team is critical, retorts USAO-SDNY. Such impartial teams are the method our legal system uses to deal with the need to balance public and private interests in situations like this one, and no one’s above the law.
[I]n Grant, Judge [Barbara] Jones expressly based her decision to approve a prosecution Filter Team—over the objection of the privilege-holder—“upon the expectation and presumption that the Government’s privilege team and the trial prosecutors will conduct themselves with integrity.” Judge Jones stated that it “seems to me that the Government is entitled to that presumption and that society’s interest in enforcing the criminal laws outweighs the limited incursion into the attorney client privilege that this process permits.” The President does not—and cannot—proffer any reason whatsoever why the USAO-SDNY is not entitled to the same presumption here.
Expect fireworks during—or at least following—the next hearing Monday afternoon. The judge will expect both parties to be prepared, and Cohen to be present. Both Avenetti and Daniels will be around, too.