Cohen Prosecutors Accept Neutral Review, Using Trump's WordsBy and
Government says Trump comments show privilege covers little
Prosecutors propose special master, automated review for speed
Prosecutors probing President Donald Trump’s lawyer said they are prepared to use a neutral outsider to review documents seized this month from the home and office of Michael Cohen, an about-face from the government’s initial plan to scrutinize the documents itself.
In a five-page letter to the judge Thursday, prosecutors also used the president’s own words from two hours earlier to argue that the special master’s document review could move swiftly. Trump said on the Fox News program “Fox & Friends” that Cohen was responsible for only “a tiny, tiny little fraction” of his legal work.
That interview -- and Cohen’s earlier acknowledgment that he had just three legal clients this year -- may have undermined the lawyer’s claim that the seized records may contain “thousands, if not millions” of privileged communications from clients, said former federal prosecutor Renato Mariotti.
“Cohen is trying to portray himself to the judge in his criminal case as he’s doing a lot of legal work, he’s a lawyer, he’s got multiple clients,” said Mariotti, who isn’t involved in the case. “Trump is trying to make it sound like he didn’t handle a lot of my legal work, which is what the government is saying.”
In their filing, prosecutors said they now recommend a special master process proposed by retired U.S. Magistrate Judge Frank Maas to weed out records that might be covered by the attorney-client privilege. They had previously asked that a separate team of prosecutors be permitted to review the documents first -- a procedure routinely employed in other cases involving such materials.
"We believe that using Judge Maas or another neutral retired former Magistrate Judge familiar with this electronic discovery process and with experience in ruling on issues of privilege will lead to an expeditious and fair review of the materials obtained through the judicially authorized search warrants," prosecutors said in a letter filed shortly before a court hearing scheduled for noon.
In a separate letter filed with the court, Maas said that as special master he could analyze potential privileged materials through one of two methods. One would involve his review of a so-called privilege log, which would list all materials that any party says might be protected, as both Trump and Cohen have urged. The other would involve Maas directly reviewing the seized material himself to determine what may be privileged.
He preferred his own review, saying “privilege logs often are virtually useless as a tool to assist a judge or master, and their preparation is expensive and can cause delay.”
In the prosecutors’ letter, they also quoted another Cohen client, Fox News host Sean Hannity, who has said, “Michael Cohen has never represented me in any matter. I never retained him, received an invoice, or paid legal fees.”
Prosecutors have said their probe is focused more on Cohen’s personal business and financial dealings than his legal work. They have seized documents relating to a 2016 payment made by a company Cohen set up to adult film actress Stormy Daniels, who claims to have had a tryst with Trump in 2006.
Also on Thursday, Michael Avenatti, the lawyer for Daniels, said he will ask Wood to let his client join the Cohen case over the materials seized by investigators. Daniels is seeking to protect her right to material that may have been shared with Cohen by Keith Davidson, the lawyer who negotiated the $130,000 deal for Daniels to keep quiet about having sex with Trump.
Davidson said through a spokesman April 20 that he’s cooperating with prosecutors in their investigation of Cohen.