THE PRIVILEGED ONES

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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.