On Monday of last week the FBI raided Michael Cohen’s office, home, and hotel—apparently, his house is being remodeled—and took away his paper files, computers, and external drives. Mr. Cohen is said to be in the habit of recording his conversations, and so, one supposes, the seized materials contain lots of recordings.
Some of these materials are subject to a valid claim of attorney-client privilege, which shields communications between a client and a lawyer—a member of the bar, acting as a lawyer, not in some other capacity such as business advisor—made for the purpose of securing legal advice.
Some of these materials are not subject to a valid claim of attorney-client privilege—for any one of several different reasons. For example, both Cohen and Trump claim that Cohen was acting on his own initiative when he paid off Stormy Daniels, and that Trump knew nothing about it; if that’s right, then Cohen had no client in that deal, so the attorney-client privilege clearly does not fit. In other cases Cohen may have been acting as a business advisor, or perhaps an expert on securing the services of thugs and hit men, not in his capacity as a lawyer. And the privilege does not apply to communications where the attorney joins with his client to commit a crime or a fraud.
Who gets to decide which documents and recordings are privileged sheep and which or unprivileged goats?
In a typical case, the prosecutor would serve a subpoena; lawyers for the person whose documents are requested would review the materials for (a) responsiveness to the subpoena and (b) privilege; documents that are both responsive and non-privileged would be turned over to the prosecutor; and documents deemed to be responsive but privileged would be listed and described in general terms on a schedule. Thereafter, the lawyers for the two sides would fence over the appropriateness of claims of privilege. And, where a dispute could not be resolved through negotiation, the document would be submitted “in camera”—i.e., in secret—to a judge or magistrate to make the final call on privilege or no privilege.
Obviously, the government did not follow that procedure here, but just raided the office. Their argument, as I understand it, is that Cohen’s so-called law office is actually a criminal enterprise, and that they have set up their own separate team of lawyers, behind a Chinese wall, to examine which documents are privileged and which are not, and then turn over the right documents to the lawyer who will be prosecuting the case.
After the raid on Monday morning, it took Trump until Wednesday evening to hire a lawyer to handle the matter. He made an appropriate choice, Joanna Hendon, an experienced and highly respected member of a New York white collar defense boutique firm. His wise choice has two benefits. First, he now has competent counsel. Secondly, by using someone of real professional stature, not a sleazy clown, as his lawyer, Trump increases his chances that the court will allow his brand new, high caliber lawyer to take first crack at separating the privileged sheep from the unprivileged goats.
At the same time, by selecting a competent, ethical, high class lawyer, Trump runs a big risk: that she might reject any importuning to join in the commission of crimes and frauds, to obstruct justice, to suborn perjury, or to defame the Justice Department. This could be a problem. I give it a week or two before Trump fires Hendon and starts sliming her.
I hope she got her money up front. I’ll bet that she did. After all, she is in the business of representing criminals. Often criminals, even those not named Donald Trump, welch on their monetary obligations. That’s how they got to be criminals in the first place.
In any event, all of this will play out in court today. Presiding will be Judge Kimba Wood. senior United States district judge. Appointed to the U.S. District Court in Manhattan by Ronald Reagan in 1987, Judge Wood has been judgin’ for 31 years. Though a Reagan appointee, Judge Wood became one of Hillary Clinton’s ten thousand closest friends—and almost got to be named Attorney General, before being snared in nannygate. An ambitious person in her younger days—professionally, socially, economically, martially—the judge is now 74 years old and has seen it all.
Trump loves to bully and intimidate. His problem is that some people cannot be bullied and cannot be intimidated. Bullshit is something up with which Judge Wood will not put.
So who will actually get first crack at reviewing the documents and recordings? My guess is that the good judge and her team will be ordering in the headsets, along with an abundant supply of pizza and beer, and will be settling in for a long session of reviewing the materials themselves.