SDNY Will Be Forced to Talk about Crimes Involving the President Today

At 2PM today, in a court room in southern Manhattan, a lawyer someone hired last Wednesday to represent Donald Trump, Joanna Hendon, will push prosecutors from the Southern District of New York to explain that they have probable cause to believe crimes involving the president have been committed. Here’s why.

Last Monday, the FBI served Michael Cohen warrants listing crimes known to pertain to his taxi medallion businesses and his efforts to suppress information about Trump’s embarrassing sexual behavior, though the warrants themselves probably listed bank fraud, wire fraud, and campaign finance violations as the crimes. “[T]he riders to the search warrants – copies of which have been provided to Cohen – identify the federal criminal statutes under which Cohen is being investigated,” the government emphasized in its memo.

The taxi medallion stuff has no known tie to Trump. The hush arrangements clearly do, but at least in the case of Stormy Daniels, Trump and Cohen have both publicly denied an attorney-client role, which the government pointed out. “President Trump has publicly denied knowing that Cohen paid Clifford, and suggested to reporters that they had to ‘ask Michael’ about the payment.” It’s certainly possible Cohen has claimed to have firewalled Trump in other hush payments in the same effort to avoid campaign finance violations; to the extent that Trump has not been a formal party in those agreements, he may have likewise waived privilege.

And then there’s the crime-fraud exception to privilege, which the government invokes four times in its response to Cohen, describing how an investigative team can legally access such materials without approval from Cohen or his client if a judge okays it.

[T]he Filter Team will review them to determine whether the material is: (1) not privileged, (2) potentially privileged, (3) requires redaction, and/or (4) potentially meets an applicable exception (for example, the crime-fraud exception). To be clear, under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege holder or his/her counsel, or the court’s approval. If the Filter Team is unable to clarify a document’s category, or if there is an exception to the privilege that applies to particular material, such as the crime-fraud exception, or any waiver of the privilege – the Filter Team will (1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to whether the material is privileged;


In the face of inaccurate and/or overbroad claims of privilege, the USAO-SDNY would be seriously prejudiced if it were not able, through a Filter Team, to evaluate the validity of such claims. As Judge Barbara Jones explained in permitting review by a filter team, “[w]ithout the benefit of such a review, the privilege team would likely be unable to argue, for example, that no attorney-client privilege attached to the communication because of the crime-fraud exception, or that a document should be available for use at trial, regardless of work-product contents, because of necessity and unavailability by other means.” [my emphasis]

Even though the FBI informed Cohen he was raided as the subject of an investigation pertaining to his own business, he fought the memo by invoking the part of the US Attorney’s Manual pertaining to witnesses, not subjects, which SDNY corrected.

Cohen’s reliance on the USAM misplaced, but he invokes the wrong section. Cohen cites to section 9-19.220 of the USAM, which, as Cohen points out, applies to “attorneys who are not suspects” of a criminal investigations. See Br. at 22; USAM § 9-19.220 (noting the procedure to be followed when privileged materials are sought from a “disinterested third party”). Cohen, however, is not the disinterested third party contemplated by the USAM. The applicable provision is that which applies when the attorney is a “suspect, subject or target” of the investigation.

And even though he was told he was being investigated for crimes unrelated to it, his lawyers nevertheless treated the raid as part of the Mueller investigation. Their description of communications with SDNY, for example, begins this way, followed by several redacted lines.

On April 9, 2018, Mr. Cohen’s legal counsel was advised in a telephone call by an Assistant United States Attorney from the Southern District of New York, that the Office of Special Counsel (Robert Mueller) had “referred a portion of” the subject matter of the warrants to the U.S. Attorney’s Office for the Southern District of New York. Id. ¶ 31. Each page of the attachments to the search warrants contains a footer with the date “2017.08.02” (August 2, 2017)—that happens to be the same date that the Office of Special Counsel’s jurisdiction was amended by the Deputy Attorney General. One obvious and credible explanation is that the attachments listing the subject matter of the warrant used by the U.S. Attorney’s Office were drafted by the Office of Special Counsel as earlier as that date. [three lines redacted]

The government, in addition to mocking Cohen’s assumption based off the footer metadata, reveals what that redaction hides: Cohen speculated, “see Br. at 10, that the SCO drafted the search warrants.”

Nevertheless, both sides treat Cohen’s attempt to treat this as a question of the Russia investigation seriously. The government provides three pieces of evidence to describe why Cohen couldn’t be trusted to turn these materials over pursuant to a subpoena — because the crimes themselves involve fraud and deception, because he had, by Friday, already invoked the Fifth in the Stormy Daniels civil suit suggesting he’d withhold documents here as well, and because a tantalizingly redacted passage that suggests Cohen or someone else has already started destroying evidence…

In addition, however, the government does contest Cohen’s claim that he fully cooperated with any of the three Russia investigation his lawyer addresses at length in his declaration, which (having treated this raid as part of the Mueller investigation rather than pertaining to separate crimes) he uses to argue that Cohen could be trusted to turn over documents willingly. For example, the government notes that Cohen himself has said he didn’t cooperate with the Congressional investigations (and wasn’t treated as a target).

It appears that Cohen was not a target of those investigations. Additionally, while Cohen claims in his motion to have been cooperative, he offers no support for this assertion. Publicly, Cohen suggested the opposite, telling Time Magazine that he declined a voluntary request from Congress because it was “too broad.”

Even better, and critically important to the Trump filing submitted last night, is where SDNY fact checks the Cohen claim, backed by his lawyer’s sworn declaration, that he hadn’t fully cooperated with Mueller’s investigation because Mueller asked for everything.

Cohen also states that the SCO “had requested that the Trump Organization produce all of Mr. Cohen’s communications that were within the Trump Organization’s custody, possession, or control,” and that Cohen objected “on the grounds that [the request] called for production of privileged communications, among other things.” (Br. 8-9). Although in the ordinary course, the USAO-SDNY would not comment on investigative requests or demands made to third parties, particularly those from a separate office undertaking its own, independent investigation, in light of the representations made by Cohen’s counsel, USAO-SDNY contacted the SCO about these representations and understands they are not accurate. In particular, the SCO did not request that the Trump Organization produce “all communications” by Cohen in the Trump Organization’s possession or control irrespective of subject matter or privilege. Indeed, the request made by the SCO was considerably narrower, and specifically omitted, among other things, any documents that were protected by privilege or of a purely personal nature. Cohen nonetheless objected to that request for documents and, after discussions between Cohen’s counsel and the SCO, the SCO decided not to seek production at that time. That Cohen sought to preclude the Trump Organization from producing these third party communications belies both (i) his general assertion of cooperation, and (ii) his stated principal interest in protecting attorney-client communications. Indeed, a careful review of Cohen’s motion papers reveals that he does not purport to have personally produced any documents to the SCO.

The intransigence pertaining to Cohen’s documents involving the Trump Organization continued over to last week’s response. While the Trump Organization (which I suspect is really who hired Hendon) did not request to be party to this fight, they did send SDNY a letter last week demanding that it return every document involving Cohen and the Trump Organization.

USAO-SDNY has already received correspondence from counsel for the Trump Organization (Cohen’s former employer), which referenced the searches conducted of Cohen’s premises and claimed:

We consider each and every communication by, between or amongst Mr. Cohen and the Trump Organization and each of its officers, directors and employees, to be subject to and protected by the attorney-client privilege and/or the work-product privilege.

As a reminder: in March, Mueller subpoenaed the Trump Organization for documents, including but not limited to Russia. That’s one reason, I suspect, that Cohen believes this raid is partly about supporting Mueller’s investigation (I wonder whether Trump Org is the entity that has started destroyed documents?). And that’s one reason, I suspect, that Cohen’s team made a bid to review the seized documents for responsiveness (they use the word 13 times in their filing) before SDNY’s taint team gets the documents.

That is, in addition to whatever other crimes Cohen has facilitated for the Trump Organization, he wants to make sure that the government can’t use materials seized in this raid to investigate other crimes, such as those Cohen might be suspected of in relation to the Mueller investigation.

Having failed to cooperate with both the congressional and Mueller investigations, which is one reason SDNY cites for having used a warrant rather than a subpoena, Cohen now wants to reset the clock so he can treat this raid as a subpoena rather than a warrant so he gets to decide what is responsive to the crimes he is being investigated for or even to the demands of the Russia investigation.

Frankly, to the extent that Mueller might use Cohen’s own crimes as an excuse to search his documents (which the FBI seems to have sorted, even to the level of describe specific checks on the search warrant returns) and his devices (which they seized) to find materials relating to the Russian investigation, I’m sympathetic to Cohen’s case. Sure, Mueller can and may already be working on obtaining warrants to search for materials he might use now that the devices are in the government’s possession. But given how advanced the Mueller investigation is, it seems the government should be expected to obtain separate probable cause warrants rather than rely on plain view doctrine to search for materials on Cohen’s devices relating to Russia.

All of which brings us to the letter Hendon submitted last night on behalf of Trump personally. Herndon actually goes several steps further than Cohen’s team did (while he asked to do the first review, he made a concerted case to appoint a Special Master to do it), asking that Cohen get copies of the seized materials, after which Cohen will decide what pertains to Trump, which Trump will then get to review to decide whether he will assert privilege, only after which SDNY will be permitted to object.

1. Enjoining the government from using a taint team to conduct an initial privilege review;

2. Directing the government to provide Mr. Cohen and his counsel with a copy of the materials seized from Mr. Cohen by the government on April 9, 2018;

3. Directing Mr. Cohen and his counsel, after the government provides Mr. Cohen and his counsel with a copy of the seized materials, to identify to the President all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel;

4. Directing the President and his counsel, after they review the materials provided by Mr. Cohen, to identify for the government’s taint team all materials over which the President asserts privilege;

5. Authorizing the government’s taint team to raise any objections to the President’s assertions of privilege with the Court; and

6. Prohibiting the government’s taint team from providing the Investigation Team with (a) any materials over which the President asserts a privilege without objection from the taint team, and (b) any materials that the Court rules are privileged over the taint team’s objection.

This effectively flips the process on its head, turning the seizure back into a subpoena situation. And while Herndon doesn’t make this as obvious as Cohen’s team did, they intend the Cohen and Trump reviews to include a review of responsiveness as well as privilege.

The level of protection provided to the privilege-holder in the familiar context of a grand jury subpoena duces tecum should be accorded to the President here. When a grand jury subpoena for documents is served, the recipient, with the advice of his counsel, reviews the documents in his possession and produces the responsive documents, with one critical exception: with notice to the government, the recipient withholds all responsive documents that he and his counsel conclude are subject to a privilege, identifying such documents in some fashion without disclosing the privileged contents, often by means of a privilege log. [my emphasis]

Curiously, Herndon doesn’t contest that the government has good reason to believe materials have gotten destroyed, but says that now that the government has obtained the documents, any risk of destruction is gone. Here’s the entirety of the section where Herndon addresses the government’s need to seize these documents.

Of course, here, the government chose not to serve a grand jury subpoena, but instead to execute search warrants on an attorney’s office, residences, and effects. The government asserts that this truly extraordinary measure was necessary to prevent the destruction of evidence. (Gov’t Opp. at 14.) But even if that is true, the exigency has dissipated entirely, as the seized materials are now in the government’s control, beyond any of the potential misuses of the materials that motivated the seizure in the first place. Therefore, the fact that the government seized privileged documents rather than subpoenaing them is now irrelevant – except for the profoundly important privilege issues that the government’s unilateral and peremptory action has raised.

The government insists that it is “entitled” to the seized materials. (Id. at 2, 19.) However, to the extent the government seized privileged information, it is not entitled to have that information, much less review it. See, e.g., von Bulow, 828 F.2d at 99 (recognizing the “urgent” “need for timely protection [from disclosure] … where the discovery sought is … blanketed by the absolute attorney-client privilege”). It simply cannot be the case that by acting in such an aggressive, intrusive, and unorthodox manner, the government has somehow created an entitlement on its own part to eliminate the President’s right to a full assertion of every privilege argument available to him. Indeed, if the Court were to endorse the use of a taint team under these circumstances, raids of law offices would likely become more commonplace, as they would permit the government to wrest from the privilege-holder the ability, in the first instance, to assert privilege over documents and rightfully withhold them.

The government has done what it has done, and it has thereby protected against every notional evil it could have articulated in favor of its action. It no longer has any cognizable interest in proceeding by any procedure other than that which is typically employed to ensure that the attorney-client privilege is fully protected.

Note what has fallen out of the discussion of exigency? The crime-fraud exception, which SDNY had made clear it expected to find ample evidence of.

Elsewhere, Herndon does mention SDNY’s expectations of finding materials that fall under the crime-fraud exception, but she suggests that a taint team cannot be trusted to access the documents first because it might provide the investigative team documents that are clearly not privileged, a non sequitur to the point of crime-fraud exception documents.

The government has assured the Court that “under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege-holder or his/her counsel, or the court’s approval.” (Gov’t Opp. at 6.) Presumably the government intends by those words to comfort the Court, but the government simply cannot make that guarantee. See, e.g., Lek, 2018 WL 417596, at *1-3. As discussed above, under the government’s proposal, the taint team will turn over to the Investigative Team all materials that the taint team itself deems not privileged. If such materials contain any privileged information that the taint team failed to identify, the President’s privilege will be irremediably violated. The President, the public, and the government have a vital interest in ensuring the integrity of the privilege review process, and the taint team procedure is plainly inadequate to the task. [my emphasis]

Remarkably, Herndon suggests that the public (!!!) has an interest in letting criminal suspect Michael Cohen, who has already proven uncooperative with valid investigations, sort through his materials to decide whether the government should have documents that prove he abused his position as a lawyer to commit fraud on behalf of a client.

As the government has said, it’s not clear Cohen has any clients besides Donald Trump.

Which is why I suspect SDNY is going to provide details in court today of the crimes that it has probable cause to believe were committed. Because, in the face of an otherwise compelling claim that this is an exceptional case, what SDNY is investigating is still that Cohen served not to provide legal advice to Donald Trump, but to provide legal cover for fraud.

I have no idea what Kimba Wood will do in response (and I suspect SDNY will challenge the legal precedents Herndon has invoked).

But I suspect we’re going to hear a lot more about how SDNY has reason to believe that Michael Cohen hasn’t been serving as a lawyer for Trump, he has been serving as a fixer for him.

And Stormy Daniels will be looking on as evidence of that fact.

Update: In their filing laying out the scope of what Michael Cohen considers privileged this morning, his lawyers make their concerns about plain view doctrine even more explicit.

The choice here is between allowing the Government to make an end run around the Fourth Amendment by scooping up and viewing all of the communications seized in the search of a lawyer’s office (in this case, all of the documents and data of the President’s personal attorney) regardless of whether the documents seized were the subject of the judge’s original probable cause determination, or appointing a neutral third party to conduct that review. If the government can obtain a search warrant for particular items but then seize and review everything in an attorney’s office, the protections of the Fourth Amendment are meaningless.


In addition, a Special Master should be appointed in the interest of the administration of justice to ensure that the Government does not have access to materials for which they have not yet shown would be obtained through a valid search warrant through a showing of probable cause. In obtaining the search warrant, the Government had to make a showing of probable cause that Mr. Cohen is in possession of evidence of a crime. The search warrant is designed to allow the Government to obtain that material – and that material only.

And they again invite SDNY to lay out evidence that this stuff isn’t covered under the crime-fraud exception.

Moreover, without proffering any evidence of its applicability, the government referred to the “crime-fraud” exception in its opposition brief, (Gov’t Opp. Br. at 6, 10), and during oral argument. 4/13/18 Tr. at 28. The government also referred to its search warrant application – which we have never seen – as including “evidence for the crimes that were set forth in [a] detailed affidavit.” 4/13/18 Tr. at 60. Since there is, according to the government, an “ongoing grand jury investigation” (which is required to remain secret), it would most certainly be embarrassing and “detrimental” to Mr. Cohen’s clients if he were to reveal their identities publicly.

147 replies
  1. JD Blakley says:

    Are the details likely to be provided in open court, or more likely in chambers or sidebar with the transcript under seal?

  2. KM says:

    “Remarkably, Herndon suggests that the public (!!!) has an interest …”

    Presumably the same, shall we say, idiosyncratic definition of “the public” is being used here as in the earlier claim referencing

    “… a growing public debate about whether criminal and congressional investigations by the government are being undertaken impartially, free of any political bias or partisan motivation.”

    (Then again, maybe not.  After all, “congressional investigations” are included!)

    • KM says:

      And yet again!:

      “The American public is watching this,” Harrison says, adding that the public does not “feel comfortable” with what’s unfolding.

  3. Trip says:

    **Slowly forms Cheshire Cat Grin** in anticipation of this afternoon’s hearing (and the investigations likely being carried out by Mueller, behind the scenes).

    Trump biographer explains why Michael Cohen probably won’t bring down the president — but he knows who could
    Who Is Jason Greenblatt?
    Donald Trump’s Loyal Numbers Man
    Insiders call Mr. Weisselberg key to the enterprise. “He plays an integral part in the Trump Organization’s growth and continued financial success,” wrote Ivanka Trump in an emailed statement. “He is deeply passionate, fiercely loyal and has stood alongside my father and our family for over [three] decades.”

    • harpie says:

      Cohen’s public appearances in the last week have been staged [and covered] theatrically .

      Which makes it then possible for Trump’s lawyer to claim that the “highly politicized, even fevered, atmosphere that envelops” the Cohen investigation makes it “unreasonable” that a filter team could objectively evaluate the seized material. 

      • Trip says:

        What a load of poop. It’s not like Cohen shouldn’t have been in court defending himself at the time, or alternatively, that he could have quietly remained out of public view for a few hours.

        If you intentionally put on a dog and pony show, people are going to watch it. You can’t create a show in public and then argue and complain that it gets attention.

        • KM says:

          You can’t create a show in public and then argue and complain that it gets attention.

          And yet that’s precisely the logic behind the repeatedly-used bootstrapping strategy….

          Somewhat analogous:  justifying Comey’s firing on the basis of his treatment of Hillary, or Rosenstein’s on the basis of his not having recused himself after having written up the Admin’s justification of Comey’s firing….

          Requires shamelessness and stones to pull off.  But its disorienting effect is part of the point.

  4. KM says:

     “… letting criminal suspect Michael Cohen, who has already proven uncooperative with valid investigations, sort through his materials to decide whether the government should have documents that prove he abused his position as a lawyer to commit fraud on behalf of a client.”

    And:  “… letting criminal suspect Michael Cohen, whom Herndon herself refuses to deny may have been engaged in the destruction of criminal evidence, get his grubby hands back on, and control access to, the very materials he has so far failed to destroy …”.

  5. Pete says:

    Is/are Judge Wood’s ruling(s) subject to appeal if, in particular, they deny Cohen/Trump motion(s)?

    And, if so, could it head to the SCOTUS?

    • Peterr says:

      Yes, first to the US Court of Appeals and then ultimately to SCOTUS.

      In some circumstances, an appeal would happen immediately, while in others it would happen after the trial is complete. I suspect in this case that if there is an appeal, it would happen immediately.

  6. KM says:

    Methinks the L.A. authorities should not be allowing Keith Davidson this much time to destroy his own documentary evidence.

    • obsessed says:

      >Methinks the L.A. authorities should not be allowing Keith Davidson this much time to destroy his own documentary evidence.

      This brings up the question of how hard/easy it is for these guys to destroy evidence. For example, if Cohen has audio files of recorded interactions, and the raid recovers them, how much of that is because Cohen is a reckless idiot? Would, for example, Goldblatt or Dershowitz or some other skilled and unethical attorney have been able to fed-proof Cohen’s office?

  7. KM says:

    “Second, the appointment of a Special Master will protect the integrity of the Government’s investigation from the toxic partisan politics of the day and attacks on the impartiality of the Justice Department and the USAO.”

    Some bold mix of legal concern-trolling and Josh Marshall’s “Authoritarianism of Fails”.

  8. DS says:

    As a complete non-expert, I quickly googled Special Master to figure out what it is, and it seems vaguely reasonable, although this case is way beyond simple discovery issues. If the court were to appoint one, would that necessarily work in Cohen’s favor or make things more difficult for the prosecution? Wouldn’t a team of people still need to go through all of the evidence and sort it the exact same way as the Privilege Team? Or would a singular Special Master be buried under mountains of evidence that would delay everything? Just trying to figure out why that’s a play other than the usual tactic of filing as many objections as possible (and if that’s all this is, then forget my questions above).

    • SpaceLifeForm says:

      The judge can appoint multiple Special Masters.
      Which would help to avoid delay, which is what the various non-prosecution players in this criminal case want (also in the civil case). They want delay, delay, delay. See SCO vs IBM, and Oracle vs Google.

  9. earlofhuntingdon says:

    “Joanna C. Hendon” is the lawyer at Spears & Imes, Manhattan.

    Your speculation that someone at the Trump Org – Cohen’s replacement? – hired her seems sound.

    • brumel says:

      Further flavor is added by the fact Hendon is herself a former SDNY prosecutor… though I have no idea what that could mean.

    • pseudonymous in nc says:

      Cohen’s replacement?

      That’s assuming such a replacement exists. It’s interesting that the counsel for the white-collar stuff and the hush agreements are several tiers above the ones currently engaged on the core Russian stuff, or the mall lawyer that Cohen had a couple of weeks ago.

  10. SirLurksAlot says:

    it’s no rhinestone encrusted caribou barbie beat poetry jam endorsement and word salad fiesta, but today’s court proceedings appear to be equally as entertaining and popcorn worthy. wish the gee men coulda dun this in 2016.

    • TheraP says:

      I have fully set aside my afternoon’s “retirement schedule” on behalf of the proceedings. ;)

  11. harpie says:

    ew: “(I wonder whether Trump Org is the entity that has started destroyed documents?).”

    Well, someone was very busy at Trump Hotel in Panama, recently.

    • JD12 says:

      Curiously, Herndon doesn’t contest that the government has good reason to believe materials have gotten destroyed, but says that now that the government has obtained the documents, any risk of destruction is gone. 

      That may be why she didn’t contest it. That was stupid with high profile investigations going on. All because they refused to give up a management contract.

      But these are the same people who refused to let Stormy Daniels tell a story that a reporter already had, and look how that’s working for them.

  12. harpie says:

    southpaw @nycsouthpaw [southpaw Retweeted Big Cases Bot]
    [quote] SDNY answers Trump’s personal lawyers. [New filing in In the Matter of Search Warrants Executed on April 9, 2018: Letter] / The awkwardness of referring to Trump by his official title—as “the President”—continues in this reply, even though Trump appears in this case as a private person. [emphasis added] […] [end quote]

    • harpie says:

      From the SDNY letter:

      […] The President cites the “appearance of fairness and justice” in support of his request for a privilege process that is unheard of in this district. If anything, given “the attention trained on this investigation” (Letter at 5), the appearance of fairness and justice requires not that the President be entitled to different treatment, but that the common procedure of a filter team be followed in the normal course. […]  


  13. Bob Conyers says:

    Cohen’s client list is (sort of) out. It’s three names – Trump, Broidy and a third person who doesn’t want to be named.

    Is the anonymity something that will be allowed? I can see in some cases that it might, like the client list of a divorce lawyer who doesn’t want to reveal domestic abuse victims, but I don’t know how that works across the board.


    • Bob Conyers says:

      The Third Man (start the zither music) may be Don Jr.

      The Wall Street Journal reports that in 2013 US Weekly dropped a story about Don Jr.’s affair after Cohen called them up and yelled. Mrs. Junior filed for divorce fairly recently and news of his weird affair hit the news again, and I suspect Cohen was back in action this year threatening publications not to write about it.

  14. Avattoir says:

    It’s now buried in the discussion thread to Fearless’ immediately previous post, but I do want to reiterate the elements of a point I tried to make there about what, IMHO, is the cleanest, most judicial and most orderly way out of any apparent quagmire that the attorneys for Cohen and “President Trump” have managed to concoct via their submissions so far:

    1.Hold closely and firmly to a key distinction that Marcy refers to in her post here more than once, being to the wrongly-motivated, that is, “bad faith”, effort to magically transform this warrant return process into a challenge to a subpoena process, something on which 4th amendment specialist Renato Mariotti focused yesterday:

    2. At the same time, bear in mind that such bad motivations carry consequences (or at least should), in that what Cohen and “President Trump” are effectively trying to cook up here, are “seeking” here, once the disguise of a challenge to a subpoena is stripped away, is judicial review of a warrant process underlying a search and seizure.
    Judicial review of a warrent was, until fairly recently in the “more than four centuries” of historical time referred to in the letter from attorney Hendon, based between entirely and largely within what was known in the mothership (England) as ‘a claim in equity’ or ‘in equitable relief’. In that area of judicial jurisdiction – which, typical of English judge-made magical words, derives not from the Rule of Law but the principles that apply to fairness and humble begging to the high priests of the royal courts – for a long time, certainly until the time of Henry VIII, being quite literally senior priests of the One True church (whichever one that happened to be at the tim), whether and to what extent a person seeking the court’s assistance comes before that court “with clean hands” is a huge fucking factor.

    3. I really don’t think the Cohen / “President Trump” partnership in this challenge even gets off the launching pad unless and until they touch power rings to confirm what both have been denying, fogging up, obfuscating,, obscuring, obstructing and resisting for months in relation to Stormy Daniels: that client-attorney relationship her own attorney has been attacking.

    • KM says:

      “Under the President’s theory, every person who has communicated with a lawyer would be given the power to turn every search warrant into a subpoena and to demand the return of lawfully-seized evidence in order to undertake their own review of the evidence.  Such a rule is unworkable and ripe for abuse.”

  15. SteveB says:


    In addition to the maxim you cite :”if you seek equity then approach with clean hands”
    there is a second which is apt to your final paragraph “equity suffers not both approbation and reprobation” ie if you tried to have it both ways you are fucked twice.

  16. harpie says:

    Kyle Griffin@kylegriffin1: “Michael Cohen has used his Trump Organization email address to conduct business with New York’s Taxi and Limousine Commission since at least 2009, according to documents obtained by the Forward. Cohen’s taxi business is reportedly being investigated. ”

    From the Forward article: [quote] But Cohen has blurred the line between his personal dealings and work with Trump for nearly a decade, according to documents obtained through a freedom of information request into Cohen’s taxi medallions, the Forward has learned. [end quote] 


  17. earlofhuntingdon says:

    If Trump and Cohen were so worried about publicity paralyzing the justice system, Trump would close his twitter account and Cohen would enjoy his Cuban cigars in the privacy of his own home, not on the street with a top private banker and alleged hoodlums.

    As for issues of background fairness, federal district judge Kimba Wood was nominated by Ronald Reagan on the recommendation of ueber-Republican former Senator from New York, Alphonse D’Amato. Just as the FBI and DoJ he now hates are populated by quite a number conservatives and Republicans, including the leading figures he is most afraid of.

    This is not about partisan politics. Trump and his patrons are using that theme to disguise what is most obvious about Donald Trump: it is always and everywhere only ever about Donald.

    • DrBB says:

      This is not about partisan politics.

      Actually it is, but the parties in question are Pro-Trump vs Anti-Trump. Party affiliation in the familiar sense is entirely orthogonal to it. Even with their “unitary executive” and “if the president does it, it’s legal” theorizing, neither Nixon nor Cheney took it so far into cult-of-personality territory. They at least still thought in terms of the Constitutional understanding of the Executive; even they seemed to be able to distinguish between being the head of state and being the embodiment of it, but Trump does not and neither do his followers. You are either aligned with Trump or you are aligned with his enemies, the so-called “Deep State” and all who perpetuate it.

      It’s not coincidence that this division has crystallized under the pressure of the Russia investigation. The independence of the DOJ is pretty much all that stands between us and a garden variety cult-of-personality dictatorship at this point. Trump seems bewildered by the very idea that the DOJ does not owe its allegiance to him personally or have as its primary task the protection of him, personally, from his enemies. I’d be more than half convinced that it’s a confrontation he meant to have, except that he seems so incapable of forethought. But it’s easy to forget that it needn’t have come to this. Investigation of Russian interference in our electoral process could have been–and certainly should have been–a genuinely bipartisan concern, addressed in a bipartisan manner. The GOP went out of their way to obstruct that path when they repulsed Obama’s overtures about it before the election, but the only one who truly made it narrow down to be all about Trump was…. Trump. It really is striking how single-mindedly he brought that about. Any normal president would have at least put up a half-way convincing act of being concerned about this was an attack on the most sacred democratic value of all Americans regardless of party blah blah blah. But instead, from the very start he assumed it was all an attack upon him, and in the process did just about everything possible to make that assumption a reality. The sane conclusion is that this is all the result of someone with far too much to hide acting like a guilty party, but the staggering degree of ineptitude required makes it almost easier to believe it was the result of deliberate planning. Could you really be this dumb and still be able to manage ordinary life tasks, like getting dressed in the morning?

      • earlofhuntingdon says:

        Nice comment.

        Trump brought the cult of personality with him, like the clouds of dirt that follow Pig-Pen.  The GOP has swallowed him hook, line and sinker.  The two are now interchangeable.

        The ineptitude that circles Trump in a similar fashion is staggering:  Trump himself; Trump’s two sons, who seem to have less on the ball than daddy; his daughter’s hit and miss comments about anything about which her hairdresser does not know for sure;  Trump’s mismanagement of so much money, so many projects, and so many bankruptcies; Cohen and his lawyering; and virtually every personnel decision throughout the Trump government (Flynn, Pruitt, Bannon, Scaramucci, ad nauseum).

        It would be hard to believe if Trump did not give us new reasons to believe it every day.  But Trump’s distractions are brilliant from the perspective of neoliberals’ strategy to disempower the federal government and leave the playing field to private power.  From that perspective, Trump is manna from heaven.

        Trump’s Russian obsession is harder to believe than the size of his ego or his incompetence.  He’s an American capitalist, a billionaire, a Republican.  It does not compute in ordinary discourse.  But it is demonstrably there.  The most likely explanation is that, like so much else about Donald, it is personal, and not strictly business. Perhaps Mr. Mueller will one day be able to tell us more.

      • KM says:

        Even with their “unitary executive” and “if the president does it, it’s legal” theorizing, neither Nixon nor Cheney took it so far into cult-of-personality territory.

        This is of course true.  The only problem is the implicit association of “so far into” with “more extreme, more radical — point final”.  The analogy is imperfect but nevertheless instructive:  tinpot dictatorship, complete with garden-variety cult-of-personality, vs. totalitarianism and permanent revolution.

        • SpaceLifeForm says:

          Bush Jr was just a trial run. He was not as incompetent as some thought. He was smart enough to *NOT* pardon Libby or Cheney.

          But I would not asssue Trump is incompetent, even though he just pardoned Libby.

          If you think Trump is totally incompetent, you may be wrong. He seems like it, a lot. But may be a ploy.

          Remember, he has intel that most do not.

  18. Avattoir says:

    Note that today’s ‘legal’ argument to Judge Wood on behalf of Cohen was submitted by LETTER, same as that for “President Trump”.
    Why a LETTER rather than a court filing? Court clerks will reject any such filing based on absence of any established standing.
    Federal court clerks, as well as the clerks of many if not all state courts, generally WILL accept these sorts of letters for something ‘like’ ‘filing’. They are generally put into some file folder associated with the actual court proceedings. But they won’t accept the exact same submissions AT ALL in the ‘form’ of a ‘court filing’, due to lack of standing.
    Again, it’s the first hurdle that Cohen and “President Trump” have to clear.

    Note also that today’s letter submitted to Judge Wood on behalf of Cohen specifically cites his expectation that, among the materials seized under this warrant are some that related to an “undisclosed” client – STILL “undisclosed” – who would be “embarrassed” to have his (presumably his) identity revealed and thereby his personal business ‘identified with’ Cohen. Even tho elsewhere in the Cohen letter there are references to Cohen’s ‘list’ of clients potentially affected to include Donald J.Trump and related interests (like, the pre-inaugural Trump), the way I read the letter is that that wording does NOT necessarily mean the “undisclosed” client is someone OTHER than this other creature, this “President Trump” on whose behalf attorney Hendon sent the judge a letter yesterday.
    IOW, the washing of hand continues, because they sure ain’t clean yet.

    • bmaz says:

      Yeah, but once Wood/The Court accepted Trump’s intervention and input, both Trump and Cohen were on the record. I would far prefer formal pleadings…

      And I would not dream of submitting anything less under the circumstances. But that is just me and some old school sensibilities.

    • Peterr says:

      the washing of hand continues, because they sure ain’t clean yet.

      There ain’t a big enough bar of soap in the world (cf. “Lady Macbeth”).

    • earlofhuntingdon says:

      I presume the issue of time won out over formality. Fine with me so long as it is treated as a formal filing with the court.

  19. david_l says:

    Hendon was a star SDNY prosecutor and some of Cohen’s brief is laughable so I’m pretty sure Cohen et al. know how the judicial decision is coming down and what’s probably downstream of it for them after as much delay as they can get away with.

    Maybe they get lucky and Wood appoints a Master but as DOJ points out in their reply it would be against policy and precedent, would be treating the president inappropriately deferentially, and would establish a bad precedent.

    Aside from trying to get lucky, which I’m pretty sure they think they won’t, it seems what they’re really doing is trying to produce some reasonable WITCH HUNT! doubt so they can spray a little optical gray over the legitimacy of the entire SDNY situation and turn that back on Mueller via the referral.




  20. Avattoir says:

    bmaz, as a practical matter, I really don’t know how else the judge should proceed OTHER than ‘accepting’ these 2 interventions, for whatever they’re worth. Cohen is NAMED in the warrant, and his home and business premises are specifically identified as the sites for its execution; not somehow ‘recognizing’ that means, I dunno, SOMETHING (future status as a criminal defendant, AOT) would be too unreal.
    As to the other, if say some bullshit wingnut think tank claimed authorship of the sort of letter Hendon sent, fine, I can certainly see taking a short sharp stand against allowing any status there. But the Hendon letter cites this particularly big magilla of a client, “President Trump” i.e. POTUS, and that sort of citation is really not (so far, anyway) likely to be seen as clogging up the court process, PLUS there is at least a rough commonality of names between the Hendon letter and today’s Harrison letter. I’ve been in Wood’s position in something akin to this sort of situation (tho obviously not at all closely comparable in terms of scale or public bluster), and I can assure you that the ‘safe harbor’ in such circumstances is to at least indulge the intervention to find out WTF is being asserted, in theory for the purposes of directing some resolution process.
    Again, I really don’t think any judge is going to dump either representation based on public nuisance, and it may – per your own preferred course – result in status being somehow granted at some point.

    In that last regard, this sort of side-door intervention is, in my experience, quite common in administrative law contexts, such as directives by government departments with jurisdiction over clean air or water or animal waste or chemical run-offs affecting local interests (which is by far the most common context in which I myself have seen this sort of side-door intervention used; I mean, I’ve done it myself, albeit always on behalf of disclosed clients with public interest standings, of course).

    And in the end, I don’t think there’s a reasonable apprehension here that in indulging these two letters, the floodgates will thereby be opened for future POTUSi to intervene in every single search warrant process involving their consiglieri and thereby flood the court system with the side-interets of mobbed-up presidents.

  21. Red Rover says:

    In Trump’s filing, there are references to privilege. Not having read the whole filing, I assume these are attorney client privilege. For example, there can be no basis for executive privilege, as Cohen was a personal attorney for Trump. Cohen should not have being doing any work that could related to presidential activity.

    Als0 – Cohen’s lawyer provided the names of 2 out of 3 clients in 2017. But doesn’t he need to provide the names of clients going back to whatever dates are included in the seized material?

  22. Avattoir says:

    One of Cohen’s multiple attorneys has responded to the government’s assertion that Cohen hasn’t even offered up the identify of “undisclosed” client of alleged public prominence, by suggested they (Cohen) would be willing to submit the identity to the court under seal.
    ‘And it’s: LaLa Land – no, wait…’

  23. Avattoir says:

    I realize this isn’t twitter, but I don’t speak in tweets, so: Judge Wood has just ruled in favor of the key turning point at the end of Ghostbusters – Team Cohen and Team President must now cross their photon streams.

    • KM says:

      I realize this isn’t twitter, but I don’t speak in tweets

      Lovely.  Me neither.  Must remember this one.

      • bmaz says:

        What the hell does that even mean? Explain yourself, or, please, do not bother post comments here. You may think your cute little hacker bullshit means something in a larger community, but, trust me, it does not.

        • SpaceLifeForm says:


          Watching who to communicates to whom over the phone network or the internet in order to connect dots.

          Crossing photons requires regular computers that can see the data that may have been photons over fibre-optic networks, but it then gets converted back to normal electronic data (bits and bytes), that can then get filtered and captured, i.e. for future evidence in court.

          (photons do not interact – crossing photons is a joke)

  24. Condor says:

    OMG — “the truth will always be… far stranger…”

    I was thinking Ghost No. 3 (the “ghost with the most, babe”) was going to be… Don Jr. — but this is WAY better. Way better!

    Cue the arrival of a righteously indignant woman arguing that she has been unfairly muzzled and threatened by the Cohen brute squad (as to Hannity, allegedly)… in 3… 2… 1….

    S U R R E A L !

    • Trip says:

      I’d love to know when this started. Is Hannity so far up Trump’s butt (he could perform a colonoscopy) because Cohen had Kompromat on him, from the fixing?  Or is it simply birds of a feather ‘fluck’ together?


  25. Avattoir says:

    Harrison, lawyer for Cohen, is concerned that we may not be “comfortable” with this.

    I’m okay, bub: getting thru it somehow!

  26. Rugger9 says:

    Hannity has been one of the most rabid defenders on Faux for the palace, possibly even more than Tucker and Lou. He also has an amazing sanctimonious streak (only Santorum is more Roman Catholic), a pet veterans charity that routinely has higher overhead and lower payouts to vets than the other options.

    He’s also a chickenhawk and a coward, given how Bill Maher challenged him at $1000 per minute (second?) to get waterboarded because Bill got tired of Hannity’s bloodthirsty cheerleading of “enhanced interrogation”.

    I’m not surprised that his name was kept out as much as it was since it potentially clearly demonstrates how hypocritical he is on his personal life (i.e. why would he need a fixer that specializes in bimbo eruptions like Cohen? The SillyBilly Clinton reference is intentional) in contrast to the carefully crafted public persona.


  27. Trip says:

    Here’s what Fox News is currently tweeting:

    Fox News‏Verified account @FoxNews

    California rejects #Trump administration plan for National Guard troops on border

    Fox News‏Verified account @FoxNews

    Asteroid the size of a football field makes ‘surprise’ flyby past Earth

    • Rugger9 says:

      However, isn’t Hannity on TV tonight after his radio show now?  Lordy, there will be tapes.  (Appalling, I know….)

      Followed by Colbert, Kimmel, Oliver (on Sunday) and so on?   It’s a shame the proceedings aren’t televised (I am assuming the hearing is not on TV since it would be enough of a circus already), or are they …

      • Trip says:

        No, they haven’t mentioned their staff. :)

        I still wonder if anything will be uncovered from the Murdoch raid in the UK. I know they didn’t say this case was associated with it, but you never know.

        • SpaceLifeForm says:

          Somehow I think this ties to Nix not talking now.

          Haven’t connected dots, but it has a mercer smell.

  28. Rugger9 says:

    Hannity has responded, sort of, on his show, but in fairness what can he say unless he has worked out the cover story with Cohen?  I’m surprised that Team Cohen hadn’t tossed out the possibility in the last several days knowing this was possibly out there to be revealed.  Not that they aren’t arrogant enough to think they can bluff their way through anything, but Hendon, et al. ought to be smart enough to prepare for collateral damage if the ruling went against Cohen.

    Hendon as the palace attorney is up now….

    From Rebecca Ballhaus:

    Sean Hannity just now addressed the announcement on his radio show. “It’s very strange to watch my own television network with my name in the lower third.”

  29. TheraP says:

    I’m not a Twitterer.   But Hannity is trending now!

    102K it says! —> 114K!!!

    It’s at the Top. (Above Pulitzer)

  30. Avattoir says:

    Feeling now that it’s worth repeating what Fearless Leader has already observed once today as having noted before re: some of the redactions in the the submissions to Judge Wood: that the government’s resort to seeking, obtaining and executing on a search warrant on Cohen’s abodes and office may well have been justified to the authorizing judicial authority on the basis of a reasonably-based conclusion that Trump has been destroying evidence.

  31. pseudonymous in nc says:

    Hannity’s digging a grave for himself and Cohen live on his radio show — while the hearing is ongoing! — by saying that he never retained Cohen or was billed for legal services: he just asked for legal advice from a lawyer friend, maybe gave him ten bucks, but it was covered by attorney-client privilege because Cohen said it was.

    [That’s not how it works. That’s not how any of this works.]

    • jill says:

      The Justice Department indulged  Cherly Mill’s attorney-client privilege claim just because she worked with Hillary Clinton.

    • earlofhuntingdon says:

      Informal advice can be covered by privilege, but it’s usually limited or preliminary.  But I can see where Cohen and Hannity would claim it had that character, to explain, say, a  lack of documentation covering Cohen advising Hannity how to make an awkward relationship go away.   That doesn’t answer what records Cohen would have if he gave only limited advice to Hannity.

      Hannity should be in ethical hot water, even if saying ethics within ten yards of Hannity makes the holy water boil.

      It stinks that a Fox pundit shares the same questionable lawyer with a sitting President of the United States.  Governments fall on such news – or they brush the banana leaves off their shoulders and shut down the media outlet that reported it.

      • Trip says:

        That Hannity never disclosed his relationship with Cohen, while spouting off about the case, would get him fired on any real news channel. But alas, he works for Trump TV.

      • Rugger9 says:

        I can’t see how last year’s records would have anything to refer to Hannity if his legal work had been a long time ago.  After all, Cohen is apparently a specialized fixer, and if Hannity is in last year’s records there is a reason for it.

        Stormy is on The View this week, that should be comedy gold.

      • Peterr says:

        Would giving someone “informal advice” justify calling that person a client? Seems to me that if Hannity is correct, Cohen is . . . ahem . . . stretching the truth.

        And that cuts his client list by 33%.

    • Rugger9 says:

      If that is all it is, then why fight it.  Just show the billing records and be done with it.

  32. SpaceLifeForm says:

    Hannity, meet bus.

    But, I believe this is pure distraction.

    There are other hidden ‘clients’.

    Hannity has no Kompromat on Cohen.

    But someone has Kompromat on Cohen.

    It’s *NOT* Hannity.

    Things are into serious panic mode if they have to throw Hannity under the bus.

      • Rugger9 says:

        SO, again, why fight this revelation as hard as Cohen did if this Hannity explanation is true?  He doth protest too much, especially considering that Cohen had been under surveillance for some time and there would be documentation that proves Sean wrong.

        • SpaceLifeForm says:

          Cohen did not fight against the reveal.

          His lawyers did. Cohen may not be the sharpest knife in the drawer, but when you have legal representation, that you may actually be paying for, you let them do their job.
          If you are not paying, you damn well better let them do their job, and do not ‘help’ unless asked.

          The interesting thing that caught my eye:

          Ryan was trying to stop the reveal. But then he cited a losing case. (which Judge Wood noticed. Do not assume former Playboy Bunnies are dummies)

          Next thing was Harrison (likely realizing that Ryan botched their argument), and just like that, dumps Hannity out.

          It is NOT Hannity. This is coverup BS.

          • earlofhuntingdon says:

            I think her time training at the Playboy op in London in the mid-1960s (when it was known as Swinging London) was about as long as Scaramucci’s term in the White House.

            She was one of about 20 women in her class at HLS when she graduated in 1969.  She would agree with the presiding judge in A Few Good Men, telling a weakening Colonel Jessup to button it, that he was in charge of his courtroom: “I’m quite sure I’ve earned it.”

      • KM says:

        I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective.

        C’mon, people, settle down.  The discussions were all about “real estate”.  ;)

  33. harpie says:

    Matthew Gertz @MattGertz [responding to ew]: Hannity said on his radio show last year that he had hired Jay Sekulow and Joe diGenova to investigate and sue over the CIA supposedly surveilling him. 
    Marcy:  Can we talk about the overlap of people who’ve advised Hannity and Trump, especially given that Hannity was checking on whether his comms w/Assange had been sucked up (yes, Sean, they were, as would mine be).

  34. harpie says:

    Adam Klasfeld @KlasfeldReports 
    [quote] The parties will propose suggestions for a special master, but Wood said that she has not decided whether to appoint one. / Adjourned. No @MichaelAvenatti. At least not inside the court. [end quote]

    • SpaceLifeForm says:

      Maybe Avenatti was outside smoking a cigar.
      (checking out the scenery of those walking in to courthouse)

  35. JAAG says:

    Silver lining:

    If there was ever a news story that could kill the fake news trope, and stop the spread of malignant fox news misinfo, I think that would be:  that Sean Hannity is investing in Russian mob condos, is putting up money for Jared etc.   I just cannot imagine a singular news story that could damage this generation of Republican sleaze more than one that shows Hannity and Trump are in business together. I hope this has nothing to do with women.

    If Hannity was getting ongoing consults with Cohen, he better have paid for them if he wants privilege attached. Here in Canada a consult gets privilege and duty of confidentiality outlives the retainer for the consult.  Cohen is the type of non-lawyer who will say that he was giving pro bono advice to stinking rich leader of free world bs punditry.  Hannity is saying that there were no invoices, which must be issued for consults (where I work).  add to that that Cohen resists a client list production,  then has only three clients on the list, including Hannity.  Hence his dealings with Hannity sufficient to be attorney – client, this seems cut and dry from Cohen’s position.

    So my money says Hannity is screwed.


    • pseudonymous in nc says:

      Yeah, given Cohen’s path to real estate wealth appears to involve large amounts of money derived from iffy sources, seeking “real estate advice” from him is in some ways more suspicious than asking him to pay off a woman.

      Hannity is a very rich man, and in spite of what you think of Faux News and talk radio, his money comes from legally non-iffy sources. He could afford legal or property investment advice from anyone. He seeks it from Misha Ten Units.

    • orionATL says:

      jaag –

      hands across the border :)

      i’m with you on the preferance that hannity be involved in cohen-recommended real estate, preferably a) trump real estate (get him canned) or (b) russian-tainted real estate (get him canned, too), rather than professional pussycats.

      i read today though that hannity may have consulted (with somebody) on ways to threaten or penalize efforts to get advertisers to leave his show. who knows?

  36. JD12 says:

    Lawsuit Alleges Fox News and the White House Concocted the Seth Rich Conspiracy Story
    Hannity pushed the story hard on his show.
    Murdoch was raided recently, and British regulators filed an updated report last August right after the story.

    Here’s the original story from archive:

  37. Trip says:

    Cambridge Analytica:

    Hadas Gold‏Verified account @Hadas_Gold

    The recordings were taken by Dr. Emma Briant while she was researching a book about media bias and the Trump election. The UK committee compelled her to give this as evidence – she also included this essay

    In new audio recordings submitted as evidence to U.K. committee, SCL ceo Nigel Oakes (parent company of Cambridge Analytica) compares Trump rhetoric to Hitler’s.

    Clip 8

    Nigel Oakes: Nazi methods of propaganda
    Emma Briant: It didn’t matter with the rest of what he’s [Donald Trump] saying, it didn’t matter if he is alienating all of the liberal women, actually, and I think he was never going to get them anyway.
    Nigel Oakes: That’s right
    Emma Briant: You’ve got to think about what would resonate with as many as possible.
    Nigel Oakes: And often, as you rightly say, it’s the things that resonate, sometimes to attack the other group and know that you are going to lose them is going to reinforce and resonate your group. Which is why, you know, Hitler, got to be very careful about saying so, must never probably say this, off the record, but of course Hitler attacked the Jews, because… He didn’t have a problem with the Jews at all, but the people didn’t like the Jews. So if the people… He could just use them to say… So he just leverage an artificial enemy. Well that’s exactly what Trump did. He leveraged a Muslim-I mean, you know, it’s-It was a real enemy. ISIS is a real, but how big a threat is ISIS really to America? Really, I mean, we are still talking about 9/11, well 9/11 is a long time ago.

    This interview was conducted by Dr Emma L Briant, University of Essex

    Um…Hitler didn’t have a problem with Jews? Coulda fooled EVERYONE. And SCL openly compares Trump to Hitler.

    • matt says:

      This is on target- The Emma Briant articles are awesome reading- thank you for posting the link.

      This is the pivot on the Election Meddling and the endgame is a complicated mess of intrigue that is way beyond D. Trump.

  38. jon says:

    excellent link. With The sophistication of CA , the hacking of emails , the messaging of trump , it was well coordinated . There must be evidence of these forces being brought together .

Comments are closed.