Michael Cohen Wins A Victory Over the Taint Team

In this courtroom sketch, Joanna Hendon, right, one of President Donald Trump’s lawyers, speaks as the president’s personal attorney Michael Cohen, left, sits next to one of his own attorneys Todd Harrison, center, with porn star Stormy Daniels visible in the audience between Cohen and Harrison, during a federal court hearing in New York, Monday, April 16, 2018. Attorneys for Cohen and Trump tried to persuade U.S. District Judge Kimba Wood to delay prosecutors from examining records and electronic devices seized in the raids on the grounds that many of them are protected by attorney-client privilege. (Elizabeth Williams via AP)/p>

When the home, residence, and office of Michael Cohen, who is President Trump’s personal lawyer, was raided by FBI working for the US Attorney for the Southern District of New York, all of his personal and legal records, along with his personal electronic devices, were confiscated and opened to search. There may have been a law enforcement reason for this. But I doubt it. This investigation is being carried out as a proxy to Mueller’s investigation, it follows the same M.O. as the pre-dawn raid on Paul Manafort’s home, and seems calculated to intimidate, embarrass, and to gain access to records that would be off limits if the government tried to obtain them via subpoena. If you pay attention, we are already learning about Cohen’s activities via leaks that can only have one source.

One of the strategies the investigators have been using is painting Cohen as a fake lawyer, as a guy with a law degree but who only has one actual client, and, therefore his legally protected records could easily be identified by a prosecution appointed “taint team.” The taint here is not what you’d find at urbandictionary.com nor does it do what you might imagine such a team to do. The idea is that you get prosecutors who aren’t involved in the case (yeah, I laughed at that, too) and they examine the privileged documents and only let the REAL prosecutors see things that are relevant. I don’t know if newspaper reporters fall in category of people authorized to see stuff, but it is beginning to look that way.

Earlier in the week, lawyers for Cohen and President Trump argued for the appointment of a special master, that is, an impartial legal expert appointed by the judge overseeing the case, to review Cohen’s files.

In fact, this morning the prosecutors used President Trump’s statements (this seems to be the fad among #TheResistance) from a Fox & Friends interview to make their case:

“These statements by two of Cohen’s three identified clients suggest that the seized materials are unlikely to contain voluminous privileged documents, further supporting the importance of efficiency here,” Robert Khuzami, the deputy U.S. attorney for the Southern District of New York, wrote in a letter to U.S. District Judge Kimba Wood.
The letter was delivered shortly before a hearing was set to begin regarding materials seized from Cohen’s home, office and hotel in FBI raids earlier this month.

Lawyers for Trump and Cohen have argued that many of the records seized are covered by attorney-client privilege and they want the judge to restrict how much of the information prosecutors are able to review.

The president had previously blasted the seizure, which came in part from a referral from special counsel Robert Mueller.

Trump, however, appeared to undercut that argument, at least in part, on Thursday morning, when he insisted that Cohen did not perform much legal work for him and that investigators were primarily focused on Cohen’s business dealings.

“This has nothing to do with me,” Trump said on “Fox & Friends.” “I’ve been told I’m not involved.”

Now Judge Wood has ruled.

A New York federal judge says she is appointing a former Manhattan federal judge to help determine what materials seized in raids on the home and office of President Donald Trump’s private attorney are protected by attorney-client privilege.

Judge Kimba Wood said Thursday at a hearing that Barbara Jones has the right amount of experience to handle the study of materials seized in the April 9 raids that targeted attorney Michael Cohen.

Jones was a federal judge in New York for 17 years before leaving for private practice five years ago.

The judge noted that the government and Cohen’s lawyers agreed that a “special master” was the best way to determine which materials should be off-limits to federal investigators.

This is as it should be. No sane person believes one set of prosecutors, given access to a set or records, is going to examine those records and not tell their colleagues about what is in them.