NEW YORK - A federal judge signaled Monday that she is unlikely to grant President Donald Trump’s request to let him unilaterally determine what material seized last week from his personal lawyer is privileged, but she indicated that she may appoint an outside attorney to assess the records in an effort to carefully navigate the high-stakes case.
The investigation of Cohen — which has pitted the president against his own Justice Department — took another unexpected turn Monday with the courtroom revelation that one of Cohen’s legal clients was Fox News commentator Sean Hannity.
Hannity played down the relationship, saying he occasionally asked Cohen legal questions but never paid him. But the revelation under pressure from the judge drew gasps and some chuckles in the courtroom.
The legal showdown began last week when FBI agents searched Cohen’s office, home, hotel room and safe-deposit box, seizing records and documents as part of a probe by federal prosecutors in New York into possible bank fraud and wire fraud.
Lawyers for Cohen and Trump have argued that the seizure could lead to violations of attorney-client privilege.
At a hearing Monday before U.S. District Court Judge Kimba Wood, federal prosecutors sparred with lawyers for Cohen and a lawyer for Trump, who Sunday night asked the judge to let the president review the seized material before investigators go through it.
Last week, Cohen’s attorneys asked to review the documents, or have a court-appointed special master do so. The judge did not make a decision but said she was considering appointing a special master — not because of legal precedent but in the interest of avoiding the appearance of bias in the politically charged case. Wood said she wanted more information before ruling. “A special master might have a role here. Maybe not the complete role, but some role,” she said.
Assistant U.S. Attorney Thomas McKay urged the judge to reject the requests from the president and Cohen.
“Just because he has a powerful client doesn’t mean he should get special treatment,” said McKay, who warned that if the judge gives them an inch, “they’re going to take a mile.”
Trump attorney Joanna Hendon told the judge that the president “is objecting to anyone other than himself making the initial determination of privilege,” urging caution over haste.
“This is an extraordinary case,” she said. “There’s tremendous risk that privileged material could not be recognized as such.”
It is unusual but not unprecedented for criminal investigators to seize documents from a lawyer, and there is a policy in place designed to shield information covered by attorney-client privilege.
That procedure involves having a “taint team” — also called a “filter team” — of prosecutors outside the investigation review all the material and separate what is covered by the privilege. A lawyer’s communications with a client are not covered by the privilege if they did not involve legal advice or were used to further a crime or fraud.
The masses of reporters outside and inside the courthouse in Lower Manhattan underscored the importance of the case — and the strange circumstance of a Justice Department lawyer squaring off in court against a lawyer for the president to argue about potential evidence in a criminal probe of the president’s private attorney.
Cohen, who is under criminal investigation for possible bank fraud and campaign finance violations, has come under scrutiny by federal prosecutors for his efforts to tamp down negative stories about Trump. In late 2016, he paid adult-film star Stormy Daniels $130,000 in exchange for her agreement not to discuss an alleged sexual encounter with Trump.
Daniels attended Monday’s hearing, telling reporters afterward that “for years, Mr. Cohen has acted like he is above the law.” “He has never thought that the little man — or especially, women, and even more, women like me — matter,” she said. “That ends now. My attorney and I are committed to making sure that everyone finds out the truth.”