29 April 2018

THE GREAT COHEN RAID


-->


What image comes to mind when you hear the word "raid?" If you are an old-movie buff, you'll think of a black and white film portraying the feds raiding the liquor warehouse during prohibition. Tommy guns at the ready, axes splitting barrels, the hooch flowing into the sewers. Now that was a "raid." More modern scenes are right out of "American Gangster," the narcs busting in the apartment where masked naked women are cutting and bagging cocaine powder. The door is busted in with a sledge hammer, cops rush in brandishing assault rifles, "Everybody on the floor, now!" Great stuff.

But nobody would buy a ticket to see "The Great Cohen Raid." It was boring. A federal judge issued a search warrant after finding probable cause to believe Michael Cohen had in his possession evidence of a crime, and there was a risk he wouldn't properly respond to a subpoena. The F.B.I. agents executed the warrant calmly and efficiently: At 6 a.m., they knocked on the door, Cohen opened it for them, they took what the warrant authorized them to take, and left. No axes, no unsheathed guns, not even any harsh language. In fact, Cohen described their demeanor as altogether courteous and professional. 

You prefer to call that a "raid?" Go ahead, it's a free country.

But afterwards, everybody went nuts. The President led the lunatic mob, calling the courteous execution of the court-ordered warrant "an attack on America," "the death of the attorney-client privilege," and similar Trumpian blather. And his chorus responded accordingly:  Hannity and the rest of the inmates at Fox howled at the "three a.m., break-down-the-doors raid." The only button the Trumpsters didn't push was an attack on the ethnicity of the judge who signed the warrant, and that was doubtless because they didn't know the judge's name.

Once they had secured the Cohen papers, the federal prosecutors exhibited conduct that was in every respect consistent with the respectful treatment the F.B.I. agents had accorded Mr. Cohen. To make sure they didn't see any privileged material, at a court hearing court a few days later the government said it had not looked at anything taken from Cohen, and would not do so until the court gave it permission.

At that hearing, a sensible judge presided over an open court conversation about the mechanics of how to preserve the rights of privilege holders ( basically Trump and Cohen) and still permit the government to examine those documents that did not contain privileged material.

But the "responsible media'' totally misreported what happened in court that day.  Panel discussions of TV talking heads featured "experts" declaring the government "won," Cohen "lost," a "bad day for Trump," etc., etc., etc. All nonsense.

That prompted me to write my blog dated April 20, where I pointed out that the only "winner" in court that day was the rule of law. Everybody's rights had been preserved, and progress was made working through the knots so that confidences could be protected while the government could do its job examining any evidence of criminal conduct.

But the editorial board of my favorite newspaper, the New York Times, (obviously no one on the board reads my blog!) thereafter published a Trump-like rant. The paper's front page featured an editorial suggesting that though defense lawyers had been trying to obstruct the prosecutors from getting at the truth, the government had been successful in beating them back, and via the Cohen search, had "overcome" the attorney-client privilege, so that truth and justice could triumph. 

The Times editors got so carried away, they then chastised several lawyers not involved the Cohen search, who had misbehaved in other matters. And in what the editors presumably thought was a related issue, they went on to condemn any lawyer, in any case, who warned a journalist he might be sued if he published defamatory lies! No, I am not kidding.

What to do? Given my retiring nature, I gave em a piece of my mind. I respectfully directed the editors' attention to the actual facts, and suggested they withdraw or amend their rant. For sure, the letter I sent to them was too long. But then again, so is the slightly shorter modified version reprised here. Buckle up. Sorry, I can't help myself:
.....................

"Editorial Board:
On the subject of the execution of a search warrant on Michael Cohen's homes and office, I respectfully suggest your editorial today is almost as inaccurate as Mr. Trump's criticisms were irresponsible.

You wrote:
  
Amid all the tawdry allegations in the Cohen affair, the president would have us believe he is holding high the banner of a sacred principle — attorney-client privilege. The United States attorney’s office in Manhattan was able to overcome the privilege and seize documents from Mr. Cohen after persuading a judge that evidence showed he had committed a crime, and was not just giving legal advice.

The facts are the opposite.

First, the government did not "overcome the privilege." The government has, and has pledged in open to court, it will continue, to honor the privilege. The privilege has been preserved. In fact, the government's investigators have not even looked at the seized documents, and will not do so until the court directs, and even then, it will do so under a court-ordered mechanism that preserves the attorney-client privilege.

Second, no judge was persuaded that "evidence showed [Cohen] had committed a crime." The government's showing was that there was probable cause to believe that evidence of a crime was in his possession, not that he had committed a crime.

Third, the documents seized may have nothing at all to do with giving legal advice. We will not know until the documents are examined.

All this is made crystal clear in the minutes of the court hearings. I cannot imagine the author of your piece read those minutes and nevertheless wrote that editorial. I suggest you owe your readers a clarification.

 Please overlook my pride if I suggest that if you want a clear explanation of what actually did happen in court, you look at my blog published three days ago at
https://londonsbh.blogspot.com/ entitled The Privileged Ones.

Two more points:

1. You suggest, with a condemnatory tone, that the attorney-client privilege has "often been used to keep the law at bay." That is an implicit suggestion that lawyers help their clients to commit crimes, but the attorney-client privilege does not extend to a lawyer and a client planning a crime or a fraud.

2. As to some of the other lawyer activity deplored in your editorial, I suggest there is nothing wrong with one category of conduct you condemn -- a lawyer writing a letter warning, (or, as you would put it, "threatening") a journalist that a planned story is libelous.  Indeed, one would expect a journalist would want to be warned off committing an act that might result in liability. It is not uncommon for libel defendants to offer the defense, "Well, if he thought it was false, he should have said so." 

Furthermore, under the New York Times v Sullivan doctrine, a prominent person who is defamed must show that the defendant knew the defamation was false, or that it was uttered with reckless disregard for the truth. The practical result is that pursuant to the highly praised legal principle your newspaper has successfully established, a victim who learns of a plan to publish a defamatory falsehood about him is virtually required to inform the would-be tort feasor that the planned speech is false, and that adverse consequences may ensue if the libel is published."

----------------------

Did the Times correct its mistakes? Did the editors withdraw their misguided attack on the entire legal profession? I repeat myself: Does a bear poop in a tree?

Friends, I'll post here the Times' reply when I get it. Don't wait up.

A bientot.
















20 April 2018

THE PRIVILEGED ONES


-->


When the F.B.I. executed a court-ordered search warrant of the homes and office of Michael Cohen, his lawyer screamed foul, and the President, known world-wide for understatement, said this was "the end of the attorney-client privilege", "a disgrace,'' and "an attack on our country." They were wrong on all counts. What else is new?

Now that some of the dust has settled, a brief review of some old, and recently learned, facts:

1. As we knew, the warrants were signed by a federal judge, upon a showing of probable cause that Cohen was in possession of evidence of a crime, and

2. There was probable cause to believe that if served with a subpoena, Cohen might destroy evidence.

3. Cohen has only three clients, one of whom, Sean Hannity, has denied being Mr. Cohen's client, and
 
4. There is, at this point, a real possibility that there may be no emails between Trump and Cohen, but possibly other forms of communication.

So what is all the fuss about? Actually the public fuss is all pure political grandstanding, and not so much about the law--and perhaps not even about Trump. It seems that Mr. Cohen was in the taxicab business, the real estate business, is reported to have had an interest in a Russian mob hangout in Brighton Beach, and had other fish to fry beyond paying off mistresses for Republican big shots. Bottom line, he may have a set of criminal exposures having little or nothing to do with Trump. Indeed, yesterday's "breaking news" was a report that Rosenstein told Trump he was he not the target of the Cohen search warrant.

Nevertheless, lawyers for Cohen and Trump promptly instituted a proceeding in the District Court. This was neither an attack on the propriety of the issuance of the warrant, nor on how it was executed. Instead, there were two days of hearings before federal judge Kimba Wood about how to handle the documents recovered in the search. I'll try to sum up what happened in a few hundred words.(Hah, no chance!)

First, an anecdote. Don't worry, it's pertinent. Years ago, I was retained by a group of psychiatrists to defend against a federal grand jury subpoena demanding the medical records of a former patient of one its of members. The group  was appalled, because they thought that preserving the doctor-patient privilege was vital to their profession.

My legal assignment lasted two days. On the first day, I learned the former patient had been arrested on a felony charge, and had interposed an insanity defense.

On the second day I explained to my clients that the patient's plea was a waiver of his privilege: once he put his medical condition in issue, he couldn't then hide facts about his medical condition. Seems simple, right?

The doctors complained, "But what about our privilege? Our colleague said things, wrote things in his medical notes. What about the doctor's privilege?" I gave them the bad news. The doctor has no privilege. It belongs to the patient, and he can preserve it or waive it, as he chooses. At the end of that meeting they were agitated but a lot smarter. I was shocked they hadn't learned that stuff in med school.

That anecdote explains what went on for two days before Judge Wood. It was about the rights of the privilege holders, the mechanics of how the parties would determine which documents were privileged.

The primary dispute was who was going to get the first look at the take to filter out the potentially privileged documents. The government wanted its "taint team," which was separate from its investigative team, to make the first screen..  Cohen and Trump disagreed, saying they wanted to filter out the privileged documents, not the government. (Cohen was the privilege holder only for documents between Cohen and his lawyer. For all other attorney-client communications, the privilege belonged to Cohen's clients, one of whom, Donald Trump, was represented in the court hearings.)

The matter was complicated by the fact that because the search produced computer hard drives and other digital memory, no one knew how many documents were involved. The lengthy court discussion involved cross arguments about rights of the privilege holders versus the government's investigative needs, time parameters, delay, accuracy of the taint team process, possible appointment of a special master to decide the close calls, etc., etc.

I know all this now because I have just read the transcript, but it was interesting to me that when I had earlier watched the TV news and talking head panels, everyone seemed to have been watching a different movie! Some said the government won, others said Trump and Cohen got what they wanted, blah, blah, blah.

But the truth is -- and I know this sounds trite -- the only winner was the rule of law. As a first step, the government will hold on to the originals and give Cohen's lawyers copies of what it took from him. Cohen will then give Trump's lawyer copies of documents relating to him, and the parties will proceed from there. There was no decision on whether the government's taint team or the Cohen/Trump lawyers will make the first cut, whether a list of potentially privileged documents will be made, who will make it, or what information the log will disclose, how, or when, or whether a special master will be appointed, and if so, what his or her duties may be. All this to be worked out. Until the court makes a further decision, the government will not look at the documents beyond having the taint team digitize them so they can be distributed and reviewed as the judge directs.

What we have here is a careful judge, assuring due process to all parties.  I suggest that anybody who made a dispassionate appraisal of the process thus far would agree it's fair. Doubtless, lawyers for each side will disagree about some of the details at the edges, but not the core. (Of course they will disagree. After all, they are lawyers.)

While I am on the subject of lawyers, I gotta point out some startling statements made by the Cohen team. I didn't hear any of the TV reporters focus on these details, but as a trial lawyer, I was startled by three segments of the transcript:

First, the exposure of Sean Hannity as an alleged Cohen client that so titillated the press:

If you wanna look at Cohen's documents to isolate attorney-client stuff, ya gotta know who was a client, right? Cohen's lawyers, in response to the judge's question, said Cohen had three clients: i) Trump, ii) Elliott Broidy (the RNC fat cat who paid $1.6 million to the Playmate who aborted his child), and iii) a third person who had instructed Cohen's lawyers not to identify him because he would be "embarrassed."

After much discussion about the identity of the third client, the judge told Cohen's lawyer,

"If you hand the name up, I'll maintain it under seal."

Then, after some more discussion, she ruled that the case law did not permit the client to maintain absolute anonymity. Then this:

Cohen Lawyer: Do you want me to stand and say it, or should I give it to you on a piece of paper as you said I could?

The Judge: Whatever you are most comfortable with.

Cohen Lawyer: The client's name that is involved is Sean Hannity.

Ya can't make this stuff up.

Lawyer item II:

And in case you were wondering whether Cohen, as a Trump Team member, had been focused on any personal exposure he had regarding the "collusion'' issue, we have the following discussion:

 A Cohen lawyer told the judge he couldn't estimate how long his proposed privilege identification process would take because he had been in the case "for only three days."

But the judge wasn't satisfied with that answer because, in a letter to the court, the Cohen team  had said another partner of the firm had been working for Cohen on matters relating to "Mueller, the House, the Senate, campaign finance matters, etc., "for a while." That partner was in the court and he rose to explain, making it crystal clear about what may have been Cohen's personal legal concerns:

"Judge, my swim lane was Russia and the related issues to the Russia inquiry."

Holy shit. Way to go, preserving your client's confidences, guys!

Lawyer item III, and then I'm going to the beach:

The firm representing Michael Cohen was "Big Law," with offices in New York, Chicago, Silicon Valley, Boston and Los Angeles. Its web page says it has 1100 lawyers and an international diversified practice.

The firm representing the President of the United States has one office, in lower Manhattan. Its web page says it has 12 lawyers, (three of whom were in court) and describes its practice as "civil and criminal litigation."

I will avoid sharing my view of which team performed better, but at one point in the hearing, Cohen's team revealed a bit of competitiveness coupled with a startling admission.

Judge Wood was working on a timetable for dealing with the documents. She asked the Cohen lawyer how long a particular segment of the process would take for his team: 

Cohen Lawyer:  Judge, we are a thousand lawyers. We have discovery units that are skilled in these kinds of activities and a boutique law firm would not have that technology array. They have better brains, perhaps, but not the technology array we have.

So, friends, when the feds knock on your door at 6 ayem, who ya gonna call?

A bientot.