An independent lawyer who’s a former federal judge will pick through Michael Cohen’s documents before federal prosecutors in New York can use them in their criminal investigation of him, while Cohen’s team looks through them at the same time, a judge decided Thursday.
Barbara Jones, who’s also a former prosecutor in Manhattan and now works at a large private law firm, will review the documents to make sure investigators can’t use any confidential legal work Cohen did for clients like President Donald Trump, the Trump Organization and Sean Hannity. She will ultimately decide what is considered privileged material that prosecutors can’t see.
Judge Kimba Wood outlined a general framework for how the process will be managed but left many decisions to be made by the special master. She said the documents that were not considered privileged should be turned over to prosecutors as soon as that determination is made by Jones.
The prosecutors have asked for a quick review. They cited Trump’s comments to Fox News Thursday morning – after the President said Cohen, performed a “tiny, tiny little fraction” of legal work – to argue that the documents are “unlikely to contain voluminous privileged documents.”
Prosecutors seized the documents early in April in a raid of Cohen’s house, office and a hotel room where he was staying. Since then, Cohen’s attorneys fought to see the documents before prosecutors could use them and also asked for a special master. Trump’s lawyers have objected to a special master. Early Thursday, the prosecutors from the US Attorney’s Office in Manhattan dropped their objection to an independent reviewer.
An attorney for Stormy Daniels, who has alleged Cohen was involved in a hush money deal to suppress her allegation of an affair with Trump before the election, also filed a motion with the court Thursday to be heard in the case. By intervening, Daniels’ attorneys will ask the court to preserve documents and allow them to be reviewed in case they are relevant in their separate civil case.
The judge said she was inclined to give Daniels’ attorney a “seat at the table” but reserved her decision after the government asked to have until Monday to decide whether to object.
The hearing in New York Thursday was set to learn where the government is in its process of handing over copies of documents and electronics seized in the raid. She also asked attorneys for Cohen, the Trump Organization and the President to explain how quickly they could review the materials and make claims that some of them are protected. They submitted letters saying they had large legal and forensic teams available to review.
Prosecutor Thomas McKay said they have turned over seven of eight boxes of evidence, four cell phones and one iPad. He said there are still “about a dozen” cell phones and iPads the government expects to turn over Friday. The contents of two Blackberries may take as long as three weeks to be produced to Cohen and the special master and one cell phone may take 104 days to have its data extracted, McKay said.
Prosecutors argued their proposal to allow a special master to conduct the initial review and then have the government and other parties battle over a smaller subset of documents that could be privileged would speed up the process and allow the criminal investigation to continue.
“Placing the initial identification of potentially privileged materials in the hands of a neutral party guards against the concern that an interested party making the first selection would be overbroad or underinclusive in their selection of the universe of potentially privileged materials. That, in turn, would cut down on disputes between the parties as to privilege determinations,” the government said.
McKay said any further expansion of the special master’s role to look for documents that are not responsive to the search warrant, such as medical records of Cohen’s family, would be a “very serious expansion” of the issue before the judge. He added that having Cohen’s attorney suggest nonresponsive material would also slow down the task at hand, reviewing materials for privilege.
Daniels, whose real name is Stephanie Clifford, also says she has a role to play in the case.
The porn star said that documents taken in the FBI raid of Cohen’s home and office may violate her privacy because they include extensive records of her discussions with her former attorney who worked to kill stories about her alleged relationship with Trump, according to court papers she’s slated to file in New York on Thursday.
Specifically, Daniels said the documents federal prosecutors took may include emails, texts and audio recordings between her and her Keith Davidson, who cut the deal with Cohen on a $130,000 hush payment before the 2016 presidential election.
Daniels’ move to take part in the case in New York on Thursday could add another voice in the fight over who’s reviewing Cohen’s files. Currently, Cohen and federal prosecutors are asking for an independent review of the filings to weed out his confidential legal work. The Trump Organization and Trump, for whom Cohen has worked as a lawyer, also have voices in the case.
“It is also my understanding that the materials taken from Mr. Davidson includes Ms. Clifford’s entire client file, including text messages and emails,” Michael Avenatti, an attorney for Clifford, writes in the filing, shared via Twitter minutes before a court hearing with Cohen in New York was set to begin.
Davidson was in touch with Cohen about Daniels as recently as this year, after she sued Trump in California, Avenatti wrote. Daniels has previously accused Davidson of working closely with Trump’s lawyers while “pretending to advocate on her behalf.”
Daniels claims the confidentiality of her attorney-client relationship with Davidson may be breached, based on statements Davidson made about how often he’s spoken with Cohen.