SDNY Doesn’t Think Michael Cohen Is Much of a Lawyer

In this post, I noted that a bunch of what got seized in a raid of Michael Cohen’s home and office on Monday wouldn’t be privileged.

But boy oh boy was I being nice compared to the way the prosecutors from Southern District of New York dismissed the notion that Cohen was much of a lawyer in this filing opposing Cohen (and Trump’s) efforts to prevent FBI from going through Cohen’s seized documents.


Before I get into that, a few clarifications on questions we’ve had. First, the filing makes it clear that the referral from Mueller’s office came months ago. SDNY has their own taint team.

The FBI agents who seized materials pursuant to the search warrants were filter agents who are not part of the investigative team and have been walled off from those AUSAs or FBI personnel assigned to the investigation (the “Investigative Team”).

The venue in SDNY is primary. Indeed, they mock Cohen’s representation that Mueller’s team wrote this warrant application by pointing out his misunderstood the metadata of it.

Although Cohen accurately states that the Special Counsel’s Office (“SCO”) referred this investigation to the USAO-SDNY, the investigation has proceeded independent from the SCO’s investigation. Cohen’s speculation, see Br. at 10, that the SCO drafted the search warrants is unfounded. The date in the bottom corner of the attachments is the date that the USAO-SDNY’s standard form search warrant rider was most recently updated for use by the office.

Given that Mueller handed off this part of the investigation entirely, then, it’s highly unlikely Mueller thinks there’s evidence of coordination between Wikileaks and the Access Hollywood video, as I laid out here (which is not to say Mueller isn’t happy that SDNY has raided Cohen).

In addition, the filing makes it clear that Geoffrey Berman has recused, with Robert Khuzami acting as US Attorney for this investigation.

The filing also reveals the scope of the search: “Michael Cohen’s residence, hotel room, office, safety deposit box, and electronic devices,” even while noting that they limited their search to certain categories of documents.

Not much of a lawyer

The lawyers from the famously self-important SDNY spend much of their brief not just demonstrating that Cohen was not serving as an attorney in the seized materials, but that he’s not much of a lawyer in any case.

The repeatedly note he has few if any clients besides Trump.

Based on information gathered in the investigation to date, the USAO-SDNY and FBI have reason to believe that Cohen has exceedingly few clients and a low volume of potentially privileged communications.

In a long passage arguing — as I did — that much of what was seized would not be protected by privilege, they sniff about how Cohen differs from a “traditional law office,” mocking the idea that he “holds himself out as a practicing attorney.”

Although Cohen is an attorney, he also has several other business interests and sources of income. The searches are the result of a months-long investigation into Cohen, and seek evidence of crimes, many of which have nothing to do with his work as an attorney, but rather relate to Cohen’s own business dealings. As set forth below, unlike a search of a traditional law office, the information gathered thus far in the investigation suggests that the overwhelming majority of evidence seized during the searches will not be privileged material, but rather will relate to Cohen’s business dealings.

Nevertheless, because Cohen holds himself out as a practicing attorney, each of the search warrants contains the following provision: Additionally, review of the items described in this Attachment shall be conducted pursuant to established procedures designed to collect evidence in a manner reasonably designed to protect any attorney-client or other applicable privilege.

When appropriate, the procedures shall include use of a designated “filter team,” separate and apart from the investigative team, in order to address potential privileges.

In one redaction, they suggest something about Cohen’s recent behavior suggests he couldn’t be practicing much law.

Cohen’s discussion in his own memo of the Strategic Partnership between him and Patton Boggs is entirely redacted (it may be included in the significant redaction on page 3), but in the government’s memo much of it remains unredacted. Which means this redaction might state, in more damning terms, what is described elsewhere — that they cut him off on March 2, in part because he had brought in only 5 clients for the $500,000 a year he got paid.

SDNY goes on at more length about how weak Cohen’s claim that his marketing relationship with Patton Boggs creates a great risk of privilege in the materials that got seized.

Second, Cohen’s claim to have privileged communicatons through a law firm that he describes as “Law Firm-1” omits facts about his relationship with Law Firm-1 that render it unlikely that a significant volume of attorney-client privileged material – if any – was seized in connection with Cohen’s relationship with that law firm. Specifically, on or about March 1, 2017, Cohen—through his wholly-owned entity, Michael D. Cohen & Associates P.C.—entered into a “Strategic Alliance Agreement” with the law firm (the “Agreement”).6 Among other things, the Agreement provided that Cohen would receive a $500,000 annual “strategic alliance fee” from the law firm. Under certain circumstances, Cohen would also receive a percentage of the fees charged by the law firm for clients introduced to the law firm by Cohen. The Agreement also spelled out other aspects of the relationship between Cohen and the law firm, including: (1) Cohen would be given an office at the law firm; (2) Cohen would maintain his own computer server system not connected to the law firm’s computer server system; and (3) the law firm would not have a key to Cohen’s office. In addition, based upon conversations with a representative of the law firm, the USAO-SDNY understands as follows, in substance and in part: (1) Cohen did not have an email address associated with the firm; (2) Cohen did not have access to the firm’s shared drives or document systems—and vice versa; (3) Cohen’s documents were to be kept in a locked filing cabinet; and (4) Cohen did not have access to any of the firm’s client files.

What is left (and what I’ll deal with in a follow-up) is the way Cohen wields his relationship with the President to try to shield his files.

84 replies
  1. trevanion says:

    Any thoughts on whether the evidence (either pre or post taint team) presented as basis for search warrant may have involved parallel construction?


  2. scribe says:

    Typical snotty better-than-you behavior, as on display every day in federal court. You want to see outright pomposity and exaggerated displays of self-importance, go watch oral arguments in the circuit courts sometime.
    The point is – and SDNY is eliding it – Cohen is a lawyer-in-business and a lawyer, too. Lawyers in business (the kind of guy who makes more money from his business ventures than trying cases) are routinely hated by lawyers who actually do only practicing. In short, because the lawyer-in-business is usually making money hand over fist (or seems to) and not dealing with adversary lawyers, judges, insurance companies, hunting up clients, chasing clients for money, or any of the other travails of the daily practice of law. The lawyer-in-business seems to spend his days playing golf, tennis, hanging out drinking espresso, smoking cigars, and schmoozing all while money just rains down on him.

    Many years ago I had a litigator colleague whose son graduated a prestigious law/b-school combo program. He chose that program b/c he was inclined to go into investment banking, a lean confirmed by his summer-associate summer with a large firm. He’d earlier worked for his dad during college. He wound up in banking and has had a very nice career.

    When dad asked him why he chose banking over the law, his answer was quick and simple: “lawyers work too hard”.

    Back to Cohen. As a lawyer in business, so long as his license is active he is subject to the same ethical rules as any other attorney, gets the same attorney-client and work-product privileges and so on. But, in his business dealings, the ethics rules say he is obligated to act with the same probity expected of an attorney and not the lower, sharper standards of business. Of course, this being Manhattan we’re talking about, what passes there would not fly in other, less cosmopolitan places.

    As to the law firm hiving him off and not allowing him access to the firm computer system, I don’t see either count as exceptionally out of line. His arrangement appears to be something along the lines of an “of counsel” arrangement, where he’s not a partner but feeds work to the firm based on his contacts. He’s got his own practice but is sort of a joint venturer with the firm.

    Not allowing him access to the firm’s computer system seems a rather reasonable way of handling what the firm likely sees as a risk to the confidentiality of their other clients and other matters. As I noted in another comment on this site, it is all but certain that all of Cohen’s comms have been intercepted and read by US counterintelligence and for some time simply because he communicates directly with the President and on matters subject to all sorts of lawyerly privileges. It would be a grotesquely negligent CI service that did not monitor all the communications to and from the President.

    If Cohen had access to the firm’s computer system, it stands to reason that the CI wiretappers would follow him there and get deep into the firm’s system. On ethical grounds of preserving the confidences of their other clients, the firm had to keep him out, Moreover, their other clients surely have matters where they are adverse to the USG. Allowing the USG access to the computer system would surely compromise client confidences to an adverse party. If you remember the discussions we’ve had here about parallel construction, it would be a given that the really juicy stuff would somehow make it from the CI people to the enforcement people, exposing the firm and its lawyers to malpractice and ethical liability.

    So, those two issues are, to my eye, unremarkable. And a bit of cattiness by the SDNY attorneys, who surely know better.

    • emptywheel says:

      I don’t disagree. I do think the taxi medallion stuff is not protected by privilege. But clearly there’s stuff that pertains to Trump that is (except insofar as Trump has Cohen operating without his direct guidance, as both allege happened with the Daniels hush payment). I’m laying this out because I’m setting up what I think is the big issue; whether he has been cooperative, and how he makes that argument.

      • bmaz says:

        Yeah? Really? Because I have seen real attorney/client relationships, with real and specific fee and representation agreements, blown up over far less.

        But, hey, I guess it is all different between drug dealers (even if homicidal) and their attorneys than it is with a politician and his consigliere trying to undermine root American democracy and the rule of law.

        So long as we can all admit this is where we are at, then let’s carry on.

  3. Rapier says:

    Well one thing is for sure, Cohen is no Clark Clifford.  That said the Clark Clifford’s of the world,  the high tone post war influence peddlers never get the scorn they so richly deserve.  He was essentially held in reverence by all Beltway players especially the press.

    Clifford came a cropper near the end of his life in the BCCI affair. Losing some money and stature and that’s about it. BCCI, now forgotten, was by my reckoning a sort of ratline opp meant to advance  jihad as US policy. That has worked out exceedingly well. In glancing back now it took SDNY 9 years to bring that to a mostly quiet end.

    • earlofhuntingdon says:

      BCCI was an extensive, global money laundering and financial crimes enabler.  It also financed the odd intelligence service black op.

      • SpaceLifeForm says:

        Now likely operating under numerous shell companies.

        The ICO has issued “information notices” against both Leave.EU – the referendum campaign headed by Nigel Farage – and its director, Banks. The notices – requiring organisations to provide the ICO with specified information within a certain time period – were issued in the same week as the ICO conducted raids last month on Cambridge Analytica’s offices. The notices are both part of Operation Cederburg – the commissioner’s year-long investigation into the use of data in the EU referendum. Failure to comply is a criminal offence.

        [Note ‘year long’]

  4. Condor says:

    Just a heads’ up: we will see 45’s lawyers’ papers to intervene, and object to the search warrants, by 9 PM EDT tonight — a Sunday. Let that sink in — Judge Kimba Wood ordered a Sunday night filing by the President.

    When might anyone recall a time when a federal judge ordered a sitting Kaiser’s lawyers to have filed papers by 9 PM — on a Sunday night? And the order came at 4:30 PM on Friday night.

    Pop the popcorn — as 45’s lawyers are supposed to prove up some form of privilege, to assert — to keep the search warrant contents being reviewed any further.

    That all ought to be… entertaining.

    • SpaceLifeForm says:

      LOL. He has lawyers?

      The only ‘one’ that could respond is outside smoking cigars while the weather is ok. As Avenatti said, tomorrow will be ‘Stormy’.

    • Desider says:

      As noted by ArtAppraiser/Dagblog, it is very worth the time to Google Kimba Wood. 

      A quite impressive education at stellar institutions, but also including brief training asa Playboy playmate, she was the 2nd judge passed over in nannygate even tho she’d paid the proper fees, and sentenced Milken to 10 years (later reduced). An attorney before her court once requested time of for a bris if his newborn were a boy. She agreed, tho if a girl would hold songs and poems in court heralding the worth of girls.

      Caveat (faux) lawyer, you’ve run into some tuff stuff.

  5. earlofhuntingdon says:

    The described arrangement between Cohen and Squire Patton Boggs is an office sharing arrangement between two distinct law practices – to put it generously to Cohen.  Helpful to Cohen to have offices, presumably in DC, outside of the WH, to tend to the Don’s business.  I assume SPB expected Cohen to refer clients, as well as to give it an inside track on the president’s attitude and concerns and a relationship it might use to its clients’ interest.

    Since this was put together in March 2017, I can only assume SPB did not yet know how unrewarding it would be to have an inside track on Trump’s “attitudes and concerns”.  A twitter feed would have cost them less.  Nor did it know how little traditional legal work Cohen engages in.  Didn’t he leave the Trump Org after Trump moved into the WH?  His other clients must not have needed more than Michael already provided them.  No surprise SPB bailed after the first year.

    • bmaz says:

      It does not appear to be even a real “Of Counsel” arrangement. If so there sure is a lot of walking back from it going on.

      • earlofhuntingdon says:

        Looks more like an office sharing arrangement, with an expectation of substantial compensated referral business that never appeared, like most of Trump’s and his cohort’s promises.

        Cohen, however, was canny enough to get his money up front.  Also like Trump, repeat business with legit players is not his thing.

          • Peterr says:

            Seems to me that if Cohen wants to claim a closer relationship with SPB, he would produce the agreement between himself and SPB which spells out that relations to be what Cohen claims, and this would settle things fairly quickly. The fact that he hasn’t — and that SPB seems to be trying to put as much distance between themselves and Coehn — suggests to me that his description of their agreement may not be backed up by the actual words of the agreement itself.

            Given how Cohen tries to cite the US Attorney’s Manual on searches of a law office when the lawyer is not a subject of the investigation to speak to how a search of an attorney’s office works when the lawyer IS a subject, I’m sensing a pattern here. It’s either deliberate misdirection or a poor lawyering. Neither one bodes well for Cohen’s case.

            “Office sharing” was exactly what this sounded like to me from the very start.


          • Desider says:

            22% of Trump’s re-election fundraising is being spent on legal advice. A referral deal could have been golden – but maybe not one this toxic.

        • earlofhuntingdon says:

          SPB was smart enough to keep the arrangement limited, even if it paid up front.  No sharing of client files, data systems, insurance or ethical obligations.  It must have done some homework on its erstwhile office companion. It took a flyer on Cohen because, well, it’s about a shot at a tad more power and access and this is Washington.

          • getouttahere says:

            Office-sharing arrangement?

            Fee for future referrals?

            Payola would be more apt.

            There’s so much that a law license enables. Until of course one gets too greedy.

            ‘Don’t bother reimbursing me for the 130 large, Mr. P.  I’ll just deduct it from your share of the SPB money.’

            • earlofhuntingdon says:

              Assumes facts not in evidence.

              The question does remain where Cohen, apparently short of funds himself, got his hands on the $130K.  We may learn more tomorrow.  But I suspect part of what SDNY is investigating relates to exactly that.  So we may to wait for the cases it’s investigating to mature a bit more.

              • getouttahere says:

                You are correct about facts not in evidence. I should’ve qualified this statement with an “e.g.”  I’m sure there are many good uses that Cohen could’ve put the money from SPB to.

                My point simply that calling a payment (“for future referrals”) to one who has a very close relationship to a powerful government official (indeed, to the POTUS) an office sharing arrangement is quite the euphemism.

                • earlofhuntingdon says:

                  Let’s separate the two issues.  The basic arrangement described in the SDNY pleading is sharing offices.  Lawyer often do it.  It just means that the “law practices” are not at all integrated.  That avoids either firm being responsible for the deeds or misdeeds of the other.

                  Separately, SPB paid Cohen a lot of money.  Notionally, that was for business development work from a guy with the closest possible connection to Trump.  That could have been lucrative, but it never materialized. The potential for it to involve conflicts of interest is profound.

                  Almost certainly, part of the money was for influence with Donald.  There, you have the better argument.  I doubt that Trump received any of the money paid to Cohen.  Fortunately, it seems SPB didn’t get the influence or referrals it thought it paid for.  We’re all better for that.

                  • getouttahere says:

                    Agreed. Probably Cohen gets to keep whatever money comes his way.  C&T probably fancy that’s C’s retainer.

                    A retainer for his retainer. Also, a mouthpiece (retainer) for his mouthpiece.


                  • bmaz says:

                    Eh, that kind of arrangement, without putting an “office sharing” attorney’s name on a case is inappropriate fee sharing if you ask me. Don’t know the bar specifics there, but it is, at a minimum, pretty sketchy.

    • SpaceLifeForm says:

      I would say CA (likely SCL, AIQ, and Facebook too) and Gazprom are issues for Squire Patton Boggs too.

      Cohen may have been the least of their issues.

      • bmaz says:

        You STILL have not figured out that you do not know diddly squat about law and legal process, have you.  Naw, keep on spewing bullshit in a place where people actually come to for reliance on well meaning and informed commentary.

    • maybe ryan says:

      >to refer clients …

      That must have led to awkward moments at the SPB weekly staff meeting:   “Hey, anybody here want to take the other side in a hush-money sex-case?  I got the Playmate covered but you could handle everything for the fat, oily old man.  We split the difference and take 40%.”

      • KM says:

        Ha.  But Cohen already has Davidson for that.  What I want to know is, how did Bechard get hooked up with Davidson in the first place?

  6. scribe says:

    Responding to EW upthread

    Well, the taxi medallion thing might not be Trump’s privilege. But given the [apparently] [near-]chaotic nature and structure of Cohen’s practice, it might take some doing to unravel just who his client(s) is(are) and whose privilege it might be to assert. I could see a good-faith argument being made for the court to appoint a special master to sort through the mess, independent of the government and of Cohen.

    Why does this law firm’s structure remind of Bernie Madoff’s investment funds having as the compliance auditor a one-man CPA firm in a mall 30 or so miles outside the city? Because it’s New York?

    As to Cohen operating independently of Trump’s authorization, it makes for a very interesting law school exam question on privilege.

    Boy, did the Pens shut off the sound in the Flyers house, or what? Except for the boos, of course. Lovin’ it.

    • Avattoir says:

      The way you started out on this looks like the set-up to one of those ‘clergyman accountant engineer’ jokes: assume good faith.

      1. The issue at to whether ANY clients – plural – of a given attorney MIGHT have some privilege claim available, as a matter of course should start with, Does the attorney even ASSERT that he has clients? Right? I assume you agree that this is at least a necessary precondition. Anyway, it’s not an abstraction: if, as here, the government is saying, This attorney dude has no clients. Or, alternatively, the ONLY client(s) this attorney dude says he has are all named Trump, those that are not actually the person Donald J. Trump all are controlled directly or indirectly by that person, and the only ‘business’ this attorney dude is claiming to act on for Trump or Trump interests is covered by the materials, including those sworn under oath, already put before the judicial authority who granted the warrant. The only person with legal standing to seek judicial review of that grant is someone before a a trial judge in the context of a pre-trial suppression hearing, and whatever this is right now, this ain’t that (yet, at least).

      2. So far, the only person willing to show his face before this court as asserting status as the attorney dude’s “client” is President Donald J. Trump. Which, is pretty freaking odd, since supposed POTUS placed all his business, property and pre-president interests into one or more loosey-goosey under-documented ‘Bullieve Me ‘trust’ relationship doohickeys run by (those of his biological descendants he’s willing to admit to as) his kids. So, all those potentially extraneous Trump-in-name corporations and property interests SHOULD be totally off the table here, given the only privilege PRESIDENT Trump has left room for a ‘private attorney’ to act for him in a personal capacity, is, to risk being redundant, personal stuff. And again, that’s something that has to start with the attorney dude asserting something, like, I act for PRESIDENT Trump in his personal capacity as a former swordsman of the boudoir (ALLEGEDLY), and, in that capacity, I kept some files related to the client’s, uh, activities and legal/legal-ish, ah, exposure, AND among THOSE  files are some communications between me and the client that go to my rendering legal advice.

      3. Fine and dandy to that point, but where, pray tell, is Cohen’s assertion to that fairly narrow point, and how is it supported, IF AT ALL, by the putative client? The record is that Cohen has asserted throughout, and continues to do so even after the search warrant was executed, that he acts for an UNDISCLOSED CLIENT. And that’s it: that’s the ONLY client – singular – he’s claimed to have – Mister, Missus, Master or Miz “UNDISCLOSED”. Not any array of companies and interests named after Trump, or even Donald J. Trump. Just that one, “UNDISCLOSED”.

      Hey, attorney Herndon: are you and your firm claiming to act for the person who is in fact that very “UNDISCLOSED”? And what’s your proof, because attorney dude over here, for whatever cockamamie reason, isn’t saying that.

      Get it? Who’s your client(s), Cohen? “UNDISCLOSED”. And YTF are your here Mister President? “He’s my attorney”. So can we all agree to match up these 2 claims and move on a bit? No, we can’t? Well, that’s gonna cause problems … for YOU two, not the government.

      And the very first hurdle you two face is somehow organizing your ways out of your separate paper bags and finding some way to convince me you’ve got standing for me to exercise judicial review over this search warrant.



      • earlofhuntingdon says:

        It does seem intentionally vague who Mr. Cohen’s clients are: Donald J. Trump, one or more Trump Organization businesses, or all of the above.  I assume that’s intentional.  Listing the names of clients will itself open a can of worms, given the opaqueness of Trump’s businesses and the impression they give of not much bothering with corporate or any other formalities.

        What organizations exist and where each is properly qualified to do business is a routine if onerous part of corporate and tax counsels’ lives.  My guess is that Trump did that as well as he manages every other part of his empire.  Among the peripheral problems inattention to that will generate are tax and doing business problems for jurisdictions in which Trump did not bother to obtain or maintain his legal and tax status.

        Cohen’s limitations and inadequacies might open the sally port into Trump castle. Once open, who knows what the intruders might legitimately find and have to deal with.

  7. earlofhuntingdon says:

    As far as Margaret Sullivan’s paean to Hannity and Fox News being the difference between Nixon walking the plank and Trump staying put, would she reconsider her thesis if she knew that Rachel Madow’s is now the most watched cable show in America?

  8. earlofhuntingdon says:

    Adam Davidson’s New Yorker article on the skeletons in the closets of the Trump empire has a nice description of the kind of business that Donald really built:

    [Michael] Cohen, Donald, Jr., and Ivanka monetized their willingness to sign contracts with people rejected by all sensible partners. Even in this, the Trump Organization left money on the table, taking a million dollars here, five million there, even though the service they provided—giving branding legitimacy to blatantly sketchy projects—was worth far more. It was not a company that built value over decades, accumulating assets and leveraging wealth. It burned through whatever good will and brand value it established as quickly as possible, then moved on to the next scheme.

    The latest scheme is the White House.

  9. Peterr says:

    Is it just me, or is SDNY trolling Cohen and Trump when they cite CNN three times in footnotes and the body of the motion about public statements made by Cohen and Trump (pp. 9, 11, & 15)? All kinds of news outlets covered these stories, but SDNY selected the one media outlet most likely to get under Someone’s Very Thin Skin.

    (To be fair, they also cited a Bloomberg account of a fourth story. Still . . .)

  10. earlofhuntingdon says:

    I suspect SDNY is displaying a bit of its usual arrogance.  But it’s pleading was significantly better than Cohen’s.  It’s possible they only had all the law and the facts on their side.  They have been working this case for months, including with a grand jury.  We’re likely to be living with this for some time.

  11. harpie says:

    Kyle Griffin tweets about new WSJ article:
    Trump Lawyer Michael Cohen Used the Same Delaware Company for Payment Deals to Two Women Federal probe looks closely at money flowing in and out of Essential Consultants

    Michael Cohen used the same Delaware LLC to handle Elliott Broidy’s Playboy model payoff as he used for the Stormy Daniels payoff, WSJ reports. Prosecutors are examining money flowing in and out of the LLC as part of its probe into Cohen. / Michael Co­hen suc­ceeded around 2013 in killing a story Us Weekly was pre­paring about an al­leged af­fair between Don­ Jr. and Aubrey O’­Day, peo­ple fa­mil­iar with the mat­ter tell WSJ. / In­ves­ti­ga­tors are ex­am­in­ing whether Michael Co­hen fraud­u­lently used a bank loan for some­thing other than the pur­pose he de­scribed on his loan ap­pli­ca­tion, WSJ reports. […] 


    • earlofhuntingdon says:

      The SDNY pleading was just being factual, then, not snarky, when it described the limited reach of Mr. Cohen’s lawyering skills.

      The reasons not to use the same corporate shell cut-out for dodgy payments are similar to the reasons an assassin does not use the same gun twice. Or was Mr. Cohen’s client trying to save money?

  12. Bob Conyers says:

    I’m impressed that even though the referral came months ago, everything was buttoned up until the Feds started showing badges. No leaks at all, once again.

    That certainly leaves open the possibility that there are teams working in other places on other big cases. Once again, it’s a mystery why the Hill GOP and other parts of the establishment didn’t start gaming this out sooner.

  13. Rapier says:

    Where has our illustrious Attorney General been lately?  He could not have been unaware of this brush fire  in the SDNY office. I mean isn’t it routine  for the AG to see summaries of ongoing major cases in all districts?  He isn’t spending all his time playing golf and tweeting after all.

    How isn’t Trump  now ready to kill Sessions, so to speak? I suppose Sessions had a clue what a shitstorm the whole Trump presidency could be.

    • earlofhuntingdon says:

      When a lawyer’s opening sentence harkens back “four centuries” to the supposed origins of attorney-client privilege, she’s not arguing current law or facts.

      She’s also handily assumes that the entire filter team process would, by definition, be inadequate to protect client’s confidences.  She’s parroting Cohen’s line, arguing that the privilege holder should review the materials.

      If, as Ms. Herndon suggests, the question of who should review the seized materials answers itself, Judge Wood should have an easy time of it.  But that seems unlikely.

    • earlofhuntingdon says:

      Ms. Herndon is formally arguing to protect her client’s privilege.  In effect, but not in so many words, she seems to be arguing to protect her client from self-incrimination that she fears would occur were the FBI’s separate clean team to review the seized materials..

  14. getouttahere says:

    It seems to me, that in order for the Court to prohibit the taint team from reviewing the seized materials (and bear in mind that the those materials were seized pursuant to a warrant based upon probable cause) that the Court would have to find that the taint team would violate its obligations to not share with the investigation or prosecution team, anything that it found to be privileged. That is highly unlikely.

    It is said that ‘hard cases make bad law’and I’m sure that the Court does not want to carve out an exception which will hinder prosecutors generally in cases of this sort.

    Stormy weather.

  15. JD12 says:

    The chain of errors Avenatti has forced this guy into already is amusing. It seems like yesterday he was talking about $20 million and going on vacation and making Stormy pay for it! All he had to do is arrange for more money, or just let her tell the story that In Touch already had, instead he threatens and sues her. He includes Trump in the lawsuit even though they both say he didn’t know anything about it. All with an NDA that’s the opposite of bulletproof. I think there’s a lot more comedy ahead.

  16. Arthur says:

    Just from the side: When there is a relationship between a lawyer, p.e. Cohen, and a client, DJT?, must there be a formal contract between them, an invoice for services/time spent, a payment, etc.?


    • earlofhuntingdon says:

      It is professionally correct and generally required.  The representation has to define the scope of work and the fees.  It should also disclose various items.  if Cohen, for example, because he worked as an employee for so long has no malpractice insurance, most states would require him to disclose that to non-employer clients.  It can be important, too, in getting paid, especially when there’s an argument about them.

      It’s also the smart thing to do.  Friends fall out as often as lovers.  Not having a written arrangement makes it harder to defend against the inevitable complaints when the client does not win.  The arguments often center around outstanding fees, because the bill is what the client’s left with.

      • KM says:

        Retweeted by EW:

        From CNN’s @GloriaBorger: From source familiar with legal relationship between Cohen and Hannity – Hannity did not get billed, there was no formal attorney client relationship, called from time to time and got input from Cohen on legal issues.

  17. Trip says:

    Although there wasn’t much that was ‘new’ in the Comey interview, revisiting the fact that Trump fired Comey, then invited the Kremlin to the oval office the next day, while not permitting any US press (including the overtly sycophantic Fox News) to attend, allowing only Russian State press, is completely bonkers.  Further, that Trump told foreign (considered adversarial) leaders that he fired the guy in charge of investigating any Kremlin actions in election interference because he was a ‘nut job’, really does put an exclamation point on the entire deal.  So many crazy things happened since then, but a reminder of how it all went down and initiated the Mueller probe, I think, is an important. I feel like we’ve been buried in so much detritus, that we kind of forget, or lose the significance of the bodies inhumed under it all, at the start.

    Between coverage of the Comey interview and the Cohen court hearing later today, I hope Trump has at least one sane minder or babysitter who keeps him from responding with international aggression. Maybe the best thing we can hope for is if they let him ‘have at it’ on twitter.

  18. Willis Warren says:

    <A href=”” oh, look <a/>

  19. Pete says:

    Near as I can tell, the Cohen defense team has until 10:00AM today to produce the client list to Judge Wood. Plus she has the “filing” from Cohen’s team re review of material seized in the search and the prosecution’s rebuttal.
    So…what is the best guess as to timing of things including Judge Wood’s consideration of items, decisions, etc.


    • earlofhuntingdon says:

      Cohen could write his client list on half a playing card.  But its short stature might undercut his legendary bravado and intimidation.

      • earlofhuntingdon says:

        Just as likely, it is a host of inadequately organized and maintained shells doing business, making deals, borrowing and spending money, entering into obligations on behalf of Donald Trump.

        That exposes Trump to having those shells pierced and the transactions deemed to be Donald Trump acting personally.  A mare’s nest.  Michael Cohen might want to re-read his malpractice insurance, or just find that second passport, ditch his cellphone, and ask Uncle Oleg for a lift on one of his Gulfstream 650ERs.

  20. Bob Conyers says:

    Did we ever find out why Geoffrey Berman recused himself from overseeing this case? I saw one bit of speculation that it was because he has ties to Giuliani, but they didn’t go into how much Berman and Giuliani are connected.

  21. Trip says:

    I did not read Trump’s papers (nor am I a lawyer), is this true?


    Stanley Cohen‏ @StanleyCohenLaw
    Failure to raise the specter of executive privilege is an acknowledgment that the president has held no discussions with cohen during the course of his presidency or that none related to any matter connected to him as president.
    Stanley Cohen‏ @StanleyCohenLaw
    At days end in absence of executive privilege president’s papers provide no basis in law as a putative client for the relief which he seeks.

  22. Trip says:

    Michael Cohen appears to be the manifestation of a shared fever dream between Vince Gilligan and David Chase.  It’s so unreal.

  23. earlofhuntingdon says:

    An interesting point.  Cohen and Trump have consistently described Cohen as the president’s personal attorney.  (Cohen supposedly stopped working for the Trump Organization in January 2017.)  That suggests no part of Trump’s discussions with Cohen relate to his work as president.  Records of those discussions would not be subject to executive privilege.

    If they were records of Trump acting in his capacity as president, they would be public records, and subject to a host of classification, preservation and use requirements that have almost certainly not been met.  But as the writer says, Trump would have had to claim executive privilege, which he does not seem to have done.

    I don’t know that Trump recognizes those distinctions.  Like the Trump Org’s claims in the Cohen case, Trump blunders about thinking that everything he says or does is his and private and subject to one of Michael Cohen’s curious NDAs.

    • Rugger9 says:

      That lack of “executive privilege is something I had noted before, but this is possibly timeline-dependent (though not in a real legal sense).  The palace has a habit of conflating things when it is to their advantage to do so, and I expect more here.  With that said, the Cohen and Manafort searches executed under warrants had the due diligence done in their respective cases, since any lapses would be seized upon as indications of a witch hunt (like the GOP tried to do in their Planned Parenthood hearing and got busted by PP’s CEO) that would become “grounds” to fire any inconvenient investigators.  It may happen anyhow, but Mueller is smart enough and experienced enough in DC to know how to navigate these waters.

      Assuming that Judge Wood smacks these down, are there any other feasible ways for the palace and its minions to stop the examination of the evidence seized in the searches?  My spidey sense tells me that if the judge rules against Cohen and Caesar Disgustus today then everything is open for Mueller (and AG Schneiderman, Avenatti, etc.) to point out to Manafort and Flynn that the gig is up and the first to cooperate fully gets the best deal.

      I’d expect the palace will try everything, but what motions might succeed and therefore be feasible?

  24. Condor says:

    Here is Cohen’s letter — all nine pages of it — just filed, at deadline time:

    My lame joke last night should have read “crime fraud” exception.

    And it here applies to the McDermott Will letter.

    Same ground being tread — and no list of clients. I predict the able Judge Wood will give the AUSAs all they asked for — and provide for copies only to lawyers for Trump and Cohen (from taint team review).

    That lame joke — will be no joke — at 2 PM.


    • harpie says:

      erica orden @eorden  New filing from Cohen’s attorneys: “As the Court is surely aware, there is a growing public debate about whether criminal & congressional investigations by the gvmt are being undertaken impartially, free of any political bias or partisan motivation.”

    • Trip says:

      Riigght. Not completely buying, “It’s not ’cause of Giuliani connections or Trump’s interview, the other guy has more experience” narrative.

  25. Bay State Librul says:

    Two other lawyers/financial wizards in the Con’s orbit: Greenblatt and Weisselberg?

    From Bloomberg


    “Greenblatt specialized in real-estate law at a major New York firm before signing on with the Trump Organization in 1997. He soon became Trump’s true in-house counsel and the company’s executive vice president. Everything that mattered in the Trump Organization, every sizable deal or sensitive transaction, required Greenblatt’s signature, not Cohen’s. Allen Weisselberg, the Trump Organization’s chief financial officer, has played a similar role when it comes to the company’s finances.

    At the end of 2016, Greenblatt left the Trump Organization after the president made him a special representative for international negotiations. Weisselberg still helps Trump’s sons manage the business while Trump is in the Oval Office. Now that special counsel Robert Mueller has subpoenaed the Trump Organization for business records, his investigators may get around to interviewing Greenblatt and Weisselberg, who almost certainly have more expansive information on the president’s business activities than Cohen does.”

  26. Condor says:

    At the second to last paragraph on page three, McDermott Will left off the word “not”.

    I am assuming it’s a typo — but maybe client number three is… relevant to L’Affaire 45!


    No doubt — this will be a sh!tshow at 2 pm!

    Just as Marcy’s latest post intimates…


  27. TravisV says:

    Timothy O’Brien on Cohen’s knowledge:

    ”Cohen certainly remains a vulnerability for Trump, especially in the context of Mueller’s investigation of quid pro quos between the Trump team and the Kremlin. But Cohen still isn’t the biggest catch from within the Trump Organization, and Trump’s international deals may wind up being less threatening, legally, than some of his domestic transactions. All of which means that the investigation may require far more time to progress and reveal itself than the media and other observers think — even if recent events make it feel like the end is near.”

    He thinks Jason Greenblatt might have juicier info than Cohen.

  28. obsessed says:

    I think R. Maddow reads you, based on her use of “not much of a lawyer” in tonight’s show.

Comments are closed.