The Trump Organization Really Doesn’t Want FBI to Have the Michael Cohen Files

In this post yesterday, I noted how hard the Trump Organization has tried to withhold (or claw back documents) from both the Mueller team and SDNY (here’s the government filing these quotes come from).

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?).

I also pointed to this passage that suggested someone had started destroying documents.

While we have no way of knowing who or what this redacted passage refers to, we do know that the Trump Organization has recently been destroying documents — in its Panama property, in advance of the majority owner kicking them out.

Two people familiar with Fintiklis’s account said that, after his arrival, hotel employees barricaded office doors with furniture, and they added that documents were shredded. The two people said Trump Organization employees — including an executive who flew down from New York City — also blocked access to a control room that houses servers and surveillance-camera monitors.

It turns out that Trump Organization had a lawyer at yesterday’s hearing.

Early in the hearing, prosecutor Thomas McCay noted that Cohen had not (in briefs, anyway) addressed any materials seized from the Trump Organization.

McKay: Cohen “does not state whether he has retained any material from the Trump Organization when he left over one year ago.” “The silence from the Trump Organization is telling,” he adds later.

Later, Cohen’s lawyer Stephen Ryan mentioned documents pertaining to the Trump Organization — but it seems like he’s more concerned about matters involving Trump personally.

With all due respect, all of use started on Monday with a completely different matter. I want to say, there are five paragraphs in that attachment A that deal directly with seeking the papers of the President of the United States in possession of my client. It is not what the government has represented is about my client’s personal life. There are five paragraphs there. This case is that. And we spent the weekend, frankly, narrowing the issues, taking issues off the table.

Here is what I can tell you. I know that materials for TO, for the Trump Organization, are in the materials that have been seized, so there are some materials for the Trump Organization. But the key here is a priority. The Court can order a prioritization of where a special master is needed and it’s needed with respect to the papers that may contain privileged information about the President of the United States.

It seems like Judge Kimba Wood might appoint a special master for some of the seized files — perhaps those involving Trump personally — but let the taint team proceed with the rest. It’s unclear whether Trump Organization would be included or excluded if Wood gave special master treatment to Trump materials.

One other note. While I don’t think it’d be among the five paragraphs pertaining to Trump in the SDNY seizure (because the SDNY is supposed to be attenuated from the Mueller investigation), Buzzfeed reported that Michael Cohen actually continued to pursue the Trump Tower Moscow deal far later into 2016 than previously revealed, in part working with a former GRU colonel, only canceling a trip to St. Petersburg, which was held from June 16-18, 2016, at the last minute.

Sater hoped to push the deal forward by attending the St. Petersburg International Economic Forum with Cohen in June 2016. Considered the most important economic gathering in Russia, the forum is regularly attended by business executives and top politicians, including President Vladimir Putin. The former Russian intelligence officer helped arrange an invitation to the conference for both Sater and Cohen, the sources said.

But neither Cohen nor Sater attended. Sources said Cohen canceled at the last minute and put the Moscow deal on hold until after the Republican National Convention. After Trump won the presidential election, the Trump Organization announced it would no longer be working on international deals, and Sater stopped working on the project.

Last year, after Sater, Cohen, and the Trump Organization turned over emails and documents to congressional and special counsel investigators, details leaked about the Trump Moscow deal and the attempt to get VTB to finance it.

Buzzfeed notes that Sater’s emails include details of these later negotiations. And SDNY has already obtained Cohen’s emails.

(Side note: if Cohen really was planning on going to St. Petersburg on anything but a 3-day cruise vacation, but canceled at the last minute, he would have had to have gone through the effort of getting a visa, which would be in …a  passport. And yet no visa for Russia was in the passport Cohen shared with Buzzfeed last year.)

In my piece yesterday, I noted that Cohen and Trump seem very concerned about policing responsiveness, keeping the SDNY review within the scope of the warrants with which the material got seized (and frankly, that’s an issue that even the most ardent Trump hater ought to support, some efforts to prevent a fishing expedition). But now that SDNY has secured the materials and prevented them from being destroyed like Trump Organization’s Panama documents were, Mueller could certainly obtain his own warrant for some of the seized materials.

Update: According to Axios, not even the Trump Organization knows what Cohen might have done on behalf of the Trump Organization.

  • Cohen knows more about some elements of Trump’s life than anyone else — because some stuff, Ivanka doesn’t want to know.


People at the Trump Organization don’t even really know everything he does. It’s all side deals and off-the-books stuff. Trump doesn’t even fully know; he knows some but not everything.”

117 replies
  1. orionATL says:

    from the ew post:


    “…Buzzfeed reported that Michael Cohen actually continued to pursue the Trump Tower Moscow deal far later into 2016 than previously revealed, in part working with a former GRU colonel, only canceling a trip to St. Petersburg, which was held from June 16-18, 2016, at the last minute…”

    isn’t it just amazing the detailed info about trump&co.’s questionable behavior that keeps leaking out, like sewage from a cracked pipe?  more amazing to me is how truely little we have learned and now know of the key minute details of trump&co.’s business/political machinations despite two years of highly public visibility, a host of enemies, and a press that, presumably, would like to know these details. trump secrecy makes cia secrecy looks like school children’s.


    as for buzzfeed’s professions of concern about the gru colonel, the guy is fried chicken now unless he was authorized to reveal the info he did and was conning the americans.

    • greengiant says:

      The same buzzfeed that published the dossier. Consider who  the source and messengers might be and ask who benefits from the story. The single and better multiple sourced tales not only provide the Roy Cohn, “all news is good news”,  they provide the agitation and adrenaline responses to distract from what is really going on and provide the basis for libel suits. Put out a bunch of fake stories about Trump, Clinton, Cohen, whomever,  just put out the dust cloud, shiny objects, etc.

      Anyways, Sater, the FBI and the CIA are so hip deep in the oligarch mobs and Russian intelligence since at least the 90s. Have to get in the mud pit to buy back all those surface to air missiles and ship the jihadis back and forth from Kosovo to Afghanistan.

  2. tryggth says:

    A transcript of the hearing was released yesterday. Any idea where to find it? Heard someone quote something odd from it…

  3. brumel says:

    Perhaps the seizure has crippled Cohen’s fixer capabilities in practice, and now he needs his own review (re-copy) of much of that stuff in order too be able to keep functioning? The Trump-Cohen relationship is not one that can easily be replicated by hiring a new lawyer/fixer. Cohen cannot transfer his knowledge to anyone else, as it contains too much criminal material. That may be why Trump has just declared that he continues to be in a “professional relationship” with Cohen, which would otherwise be surprising when at this point minimal prudence would suggest to, if not terminate, at least suspend it. I guess that’s because he has no choice.

  4. pseudonymous in nc says:

    Per Allegra Kirkland at TPM, the lawyer for the Family Business was Alan “trombones and mob bosses” Futerfas, who is also Uday’s personal lawyer for Russia-related stuff.

  5. bmaz says:

    I’ll just leave this here from the earlier thread:

    One consideration I have not seen discussed much, if at all, is that Cohen clearly thinks that all his work for the Trump Organization is attorney client privileged. And that strikes me as almost laughable.

    First off, Cohen was “in house” during all those years and matters to the extent he was operating as an attorney at all. Remember, he was also an “executive” for Trump Org. That being an executive thing pretty much destroys any ability to claim attorney client privilege. To the extent it did not in and of itself, Cohen has other issues. In house and corporate counsel have to be meticulous and detailed in how they conduct themselves in order to maintain any ability to claim attorney client privilege. The greater Trump Org is not, and cannot be a “client” because it and any of the thousands of corporate shells are not “people”. The clients have to be certain people acting on behalf of the corporation/organization. This is effectively impossible to maintain except under the most exacting and well designed situations. Not a chance in hell these idiots did so.

    So, in short, I find it VERY hard to believe anything related to the greater Trump companies deserves to be privileged. None of it.

    • brumel says:

      Just a random thought, if you excuse. Cohen is now described as a “fixer”, as opposed to a real a lawyer, but the greatest of all “fixers”, Sidney Korshak, was a real lawyer. “Never served as an officer of the various corporations formed to carry out his complex schemes. Even his legal work left no paper trail.” Also: “He was famous for never taking notes or even reading contracts.” He was in particular “adept at using his role as a lawyer as a shield against probing grand jury questions.” (As per NYT obituary in 1996,

      So I guess Cohen is not a fixer in the smart sense of the word, though fully in the stupid sense. From the description of Korshak, it seems to me that precisely attorney-client privilege was something Korshak was most keenly aware of, as a weapon and a protection.

    • orionATL says:

      bmaz –

      thanks for the very concise, informative explanation of the attorney-client privilege for in-house attorneys. i had wondered if the rule for them was different from that for “regular” attorneys and, if so, how it differed.

    • maestro says:

      bmaz, are you saying that attorneys in general cannot have business entities as clients, or that in this particular case the “Trump Organization” cannot be a client because it’s not an actual entity, but rather an informal grouping of hundreds of separate and distinct entities?

      • earlofhuntingdon says:

        The tests to qualify for A-C privilege with corporate clients are extensive.  A-C privilege applies to communications with a client who has specifically and confidentially sought advice on legal matters.

        For starters, a corporation cannot communicate.  A real person has to do that on its behalf.  That person must have the stature and authority to speak on behalf of and represent the corporation.  That’s important because it is only the client who can assert or waive privilege.  That’s a small group of officers.

        The communication has to be primarily about obtaining legal advice.  Business advice and “shooting the shit” communications do not qualify.  Once created, the privilege has to be protected.  Usually, that involves creating a written record that is treated confidentially, and preserved and segregated from business records.

        Once the confidential treatment is out of the bottle, there’s no putting it back in, no matter how many virtual and rubber stamps say, “Confidential,” “Attorney-Client Privilege,” or “Work Product Privilege”.  Indeed, overreaching with claims of privilege imperils the claim as to all materials.

        Loose lips sink ships, they also sink privilege.  The good ship Trump appears to leak like a sieve.

        • earlofhuntingdon says:

          In an closely held corporation like Trump’s, it would ordinarily be a small group of officeholders.  More generally, a corporation’s privilege would attach where an employee of the corporation, acting at the request of a superior and within the scope of their employment, confidentially communicated with in-house counsel for the purpose of obtaining legal advice for the corporation.  That assumes the other requirements for privilege, such as confidential treatment and record keeping, are met.

          That encompasses a broader group of employees.  But the magic also resides in maintaining the privilege.  That’s where Cohen and Trump probably fall down.

          Cohen in particular was known not to take notes and make records, which would be consistent with a consigliere’s role rather than a traditional corporate counsel’s lawyering role.  So the SDNY is probably right in that little of the material taken from Cohen is likely to be subject to privilege.

        • orionATL says:

          earl of h –

          thanks for the additional info on attorney-client privilege for organizational attorneys. i am not so interested in the cohen/trump matter as i am in the general problem of an organizational emlployee (an attorney) being able to avoid deposition, court testimony, production of documents, and the like. reading here it seems clear one can’t just stand up and proclaim “i’m an attorney at the xyz corp” and expect the court to acquiesce to an a-c privilege. in fact, asserting privilege seems to be the client’s role?

          • earlofhuntingdon says:

            The corporate client asserts or waives legitimate privilege, usually through its in-house or usual lawyer.  Lots of people could be responsible for its loss through not keeping the confidential matter confidential.  Litigating its creation, existence and maintenance is most often handled by outside litigation counsel or criminal defense attorney.

  6. bmaz says:

    One other thing though. No idea where Kimba Wood is going, but the thoughts of taint team and special master are, generally, not compatible that I am aware of. It is one or the other.

    • SpaceLifeForm says:

      Will not surprise if she punts tomorrow, I.E., delay, to do some research.

      I’m sure no one will complain.

      Certainly Cohen wants delay.

    • Avattoir says:

      No idea where Kimba Wood is going

      To where John Sirica would, if teleported to 2018?

      I was in law school watching Watergate in real time; she’d already served in government in D.C. 2 years then in private practice in NYC a couple of years.

      Sirica served in government in D.C. as an Assistant U.S. attorney for 4 years, then in private practice 23 years before Ike appointed him to the D.C. district court, & was C.J. at 68 there when he caught the Watergate burglary. Wood’s already been C.J. on the S.D.N.Y., having succeeded Mukasey when she was 62.

      Fun fact: she was in the same class at Harvard Law as Jed Rakoff.


    • SpaceLifeForm says:

      Also I agree that having both a taint/filter team and a Special Master is problematic.

      Which one gets the first byte of the Apple?

  7. earlofhuntingdon says:

    Organizations usually express the personality – with all its pluses and minuses – of their most dominant figure. For the Trump Organization, that’s overwhelmingly Donald. That it has survived and made money, though, suggests there are a few competent people on board.

    There are limits to what those people could do in the face of ultimate decision-making by the haphazard Trump. The Don would probably limit himself to top relationship management of deals and financing. Somebody else is handling everything else: deal structures, royalties, collections and payments, tax positions and filings, finance and accounting, and the maintenance of all those shell subsidiaries. (Not doing the latter would open a 55 gal. drum of worms.) Somebody is hiring and firing people and supplying managers for projects like Panama.

    Virtually all of that is private. No one but the odd partner or contracting party is checking on whether, what and how well the organization is doing all those things, which reduces the likelihood that they are being done well or consistently. Not doing them well would reduce profits by reducing the take, creating contractual liabilities to others or incurring higher governmental charges. But few failings in that regard would lead to criminal liability. Financing and moving money would be exceptions.

  8. bloopie2 says:

    Does the SDNY US Attorney’s office have a “political liaison” official?  That is, someone who doesn’t really do legal work per se, but who gets involved in the big political decisions that have to be made—who to prosecute, when and how, special masters, etc.  You wouldn’t want to leave such decisions to a young prosecutor, or even necessarily to a career one.  I guess the boss, Berman, might do that?  Perhaps just rely on the accumulated institutional knowledge?  Or is there some long-time mid-level person who specializes in all the dirty stuff rather than “practicing law”?  You know, a Michael Cohen type?

  9. SteveB says:

    I was going to ask about that: ie the intersection between taint team and special master.
    Have I understood correctly what the outcome of the hearing was? Viz

    1 Taint team to copy all documents (presumably including electronic media) and provide copies to Cohen side
    2 Taint team and Cohen team to each produce a schedule of documents so that documents where there is agreement and dispute over privilege may be identified.
    3 each side to nominate 4 alternate possible special masters.

    Presumably, having regard to the warrant materials the taint team is in a position to consider the application of the crime fraud principle to the material.

    Is it right that a special masters function would be to narrow the scope of disputes, with the judge making the final say so on matters not resolved before the master?

    I understand Cohen will want to argue that as many documents as possible are privileged, but if say the taint team were to adopt a position that the only potentially privileged material seized is all subject to crime fraud exception. IE would this identification of such an irreconcilable conflict obviate the utility of a special master , leaving everything disputed to be resolved by the judge?

    I appreciate that there are many nuances I probably have not considered or accounted for, or indeed may have completely misunderstood, but I would be grateful for clarification.

    • bmaz says:

      It is, obviously, a moving target. But think you have it about right. For my two cents, I see no reason for a special master with a proper filter team in play. But Wood ordered full disclosure by SDNY, even if on a rolling basis. If Cohen and Trump’s claims continue to be beyond absurd, I’d think the court could just say so. If there really are nuanced disputes, then, and only then, should a special master be called for.

      • SteveB says:

        Thanks for reply.

        Btw  I posted reply to trip plus another on other thread re john schindler.

        I seem to be getting problems nesting replies and page not refreshing, so my post came well after you did a debunk, which I only saw when my message subject to editing. Sorry if messed the thread there,

  10. earlofhuntingdon says:

    Donald Trump has “stopped being President and started being someone trying to beat a criminal rap.”

    – Marcy Wheeler, Democracy Now!, 17 April 2018.

    • KM says:

      Accurate enough as a purely functional description.  But in another, robust sense of those same expressions, Donald Trump at no point ever even started “being President”, and has long been someone trying to beat a criminal rap, since even before Mueller’s appointment as Special Counsel.

  11. Bob Conyers says:

    If the prosecutors don’t get the documents they request, who is liable? (Assuming it’s something major, of course)

    Can some sacrificial temp employee get the blame, or do certain executives get the blame by default, even if they’re not the ones literally going through boxes of documents and searching old emails?

    • david_l says:

      I assume this is about TTO docs?

      Probably depends on

      1. Why the authorities don’t get them (concealed or destroyed) and

      2. Whether a) the designated fall guy/gal employee is totally rogue and operating against longstanding squeaky clean corporate behavior and executive actions, e.g., the employee is trying to do Trump a favor for personal gain like promotion in TTO (or a cabinet position), or b) the employee is acting consistently with a pervasive corporate culture e.g., “make problems go away or else” or even just winkwinknodnod+”good job”/bonus.

      I’m pretty sure TTO would have a hard time making the case for 2a.

      If it’s 2b the execs would probably be toast if they have or should have had any responsibility for either the employee or the docs.



  12. earlofhuntingdon says:

    Meanwhile, Trump is hosting the Japanese prime minister at his personal hotel and resort, and profiting from the millions spent on the most elegant space, premium foods, wines, and liquor, and entertainment. Provided, no doubt, at Tokyo rates rather than at a US government discount.

    There’s also the golf course fees – guests always overpay – and cart, caddy and locker room fees. Plus there’s the cost of caring and feeding for hundreds of American and Japanese security guards, and the money spent by those journalists and other guests with a sufficiently lavish expense account. Members may visit more during these visits, and spend more on food and drink than usual.

    All in, a racket that Al Capone would admire.

    • Trip says:

      Also the ‘regular’ guests who pay to get access in case they have potential business in Japan.

      • earlofhuntingdon says:

        The Japanese are among the world’s lavish and expensive entertainers.  This is the height of entertainment.  Only the most rare and expensive wines, whiskies and foods need apply.  Mr. Trump would be happy to provide them, especially as he profits from every dime spent. Arguably, doing so is why he’s president.

        • earlofhuntingdon says:

          I wonder what happened to that almost US$4000 driver PM Abe gave to Trump a while ago.  Since it was valued at over $390, it should have been sent to the National Archives, as the president is deemed to accept such gifts on behalf of the American Government rather than personally.

          I just wondered, because Trump tends to forget about such things, what with his tweeting and McDonalding during his “executive time”.  And because another one’s coming his way by this weekend.

    • Avattoir says:

      “Al Capone was an avid golfer,”…

      “At first, he seldom broke 60 for nine holes; he eventually elevated to 18 holes though there is no evidence he was anything but a hacker on the golf course,” …

      During his 1920s heyday, Capone was a regular at Burnham Woods golf course – a facility 20 miles south of Chicago that is still in operation today, though Capone’s memory has long since been erased.

      In a 1972 article for Sports Illustrated, Sullivan recalled his first round on the bag for Capone.

      The stakes were $500 a hole and Capone was partnered with “Machine Gun” Jack McGurn in a foursomes match against Fred “The Killer” Burke and Jake “Greasy Thumb” Guzik.

      McGurn and Burke were both implicated in the 1929 St. Valentine’s Day Massacre — the gangland hit on his mob rivals that made Capone a household name. Neither faced charges, but McGurn — a talented golfer — was assassinated almost exactly seven years later in a suspected revenge attack.

      Burke was convicted of the murder of a policeman in 1931 and died of a heart attack in prison. Guzik was the Chicago mob’s lawyer of choice.

      There was the time Capone accidentally shot himself in the foot by setting off a revolver in his golf bag as he rummaged for a club.

      And the time Guzik, maddened by his inability to escape a bunker, ran after Sullivan wielding his driver and ready to use it.

      “There was a crazy game called Blind Robin,” …

      “One guy would stretch out flat on his back, shut his eyes tight, and let the others tee off from his chin. They used a putter and swung slow and careful. Otherwise they would have smashed the guy’s face. On the putting greens they’d throw down their pistol holders — clunk – and hold a wrestling match.”

      “Every city had gangsters but the country clubs were built and financed by the social elite and gangsters were not allowed near … But Chicago was a unique set-up. Al Capone and his gang ran the golf clubs in Chicago.

      “There, mobsters like Capone, drew protection money from the country clubs and they had access to the golf courses.”

      “It wasn’t until the 1950s and 60s that the mob in Chicago started controlling golf clubs. But if they’re on the course and nobody’s around, they’re talking business. Many normal people in the business world use golf that way.”

      emphasis added by me

      Now I can’t choose between ‘Mickey “Medallions” Cohen’ and ‘Mike “Greasy Thumb” Cohen’.

      • bmaz says:

        This is fair. How can one discern between the criminal syndicates of yesterday, and those of today?

        • SpaceLifeForm says:

          In the olden days, no internet, no 702, no EO 12333.

          But they seem to not realize.

          An 1836 multi-volume history book titled “French Revolution” contains a version of the quotation that is similar to the one given in 1852. This history book dates the quotation to a battle in 1805. These words may have been transformed into the modern maxim [FR]:

          “In that case,” said Napoleon, “let us wait twenty minutes; when the enemy is making a false movement we must take good care not to interrupt him.”

          [Now, one can just wait for the next tweet]

  13. yogarhythms says:

    EOH; Donald Trump has “stopped being President and started being someone trying to beat a criminal rap.”
    – Marcy Wheeler, Democracy Now!, 17 April 2018… May 2016 The Hill reports: “Don Jr. job offers Kasich “the most powerful vice president in history”… Kasich replies whats pops gonna do? D. Jr. says “MAGA”… #notmypresident is real. Kaiser never was/intended/understoodroll and yet here we are living the dream-oopps- the revolution, “deconstruction of administrative state” – televised 24/7 Gil Scott-Heron.

    • Fran of the North says:

      The revolution will not be right back after a message. About a white tornado, white lightning, or white people…

      The revolution WILL put you in the drivers seat.

  14. Soldalinsky says:

    This is just a hunch, but I think Cohen might be trying to somehow quash the warrant with the nexus Hannity creates to The Privacy Protection Act of 1980. I’ts been years since I’ve studied this stuff and I can’t remember much about the fruit of the poisonous tree doctrine, but it would be a home run for Cohen. Does the Fo’PT still stand… at least in theory?

    The Privacy Protection Act of 1980 (“PPA”) is codified at 42 U.S.C. § 2000aa et seq.

    Here’s some background on the PPA I got from here:

    “The PPA was the Congressional response to Zurcher v. Stanford Daily, 436 U.S. 547 (1978). That case arose when police conducted a warranted search of the Stanford Daily’s newsroom seeking photos of a demonstration at which officers were injured. Staff of the Daily had attended and photographed the violent demonstration and ran a story with photographs. In response to the publication, the police went to the Daily looking for unpublished photographs which investigators could then use to identify and prosecute violent demonstrators. The search turned up no new photographs of the event other than those already published.

    The paper challenged the search, and a federal district court found that the search was unlawful: “[i]t should be apparent that means less drastic than a search warrant do exist for obtaining materials in possession of a third party.” Therefore, in most cases, “a subpoena duces tecum is the proper — and required — method of obtaining material from a third party.” The district court dismissed the police’s argument that the First Amendment has no affect on the Fourth Amendment. The court found that the Fourth Amendment must be interpreted in light of the First Amendment and that “[t]he threat to the press’s newsgathering ability . . . is much more imposing with a search warrant than with a subpoena.”

    The Court of Appeals affirmed per curiam the District Court’s finding that the search was illegal. However, the Supreme Court of the United States held that neither the First nor Fourth Amendment prohibited this search. The Court stated:

    Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue.

    Two years after the Court ruled in Zurcher, Congress passed the federal PPA in order to overrule Zurcher and recognize the need of journalists to gather and disseminate the news without fear of government interference. The PPA, with some exceptions, forbids all levels of law enforcement from searching for and seizing journalists’ work product and documentary materials.”

    Regarding the Fo’PT, I’ve got these notes on my hard drive, but I don’t know how up to date they are and can’t remember the source(s). Perhaps there’s some experts here on 4th amendment law and the exclusionary rule that could comment. Regardless, it’s a good place to start for anyone doing research on this topic. To those that don’t know, the fruit of the poisonous tree doctrine can be summed up simply: one bad apple ruins the whole bunch. If a piece of evidence was received by unlawful means such as a search without a valid search warrant, any evidence that stems from that one illegal search will be considered inadmissible in a court of law. In other words, all evidence from an illegal search is excluded as a rule to deter bad police conduct.

    Defintion of Search: Katz vs. US, 389 U.S. 347 (1967)

    Root of exclusionary rule: Mapp vs. Ohio 367, U.S. 643 (1961)

    First and foremost, the exclusionary rule is a a court-created remedy and deterrent, not an independent constitutional right.

    The Fo’PT doctrine is subject to four main exceptions. The tainted evidence is admissible if:

    1. It was discovered in part as a result of an independent, untainted source. See Murray vs. US, 487 U.S. 533 (1988).

    2. It would inevitably have been discovered despite the tainted source. See Nix vs. Williams, 467 U.S. 431 (1984).

    3. The chain of causation between the illegal action and the tainted evidence is too attenuated. See Maryland vs. Macon, 472 U.S. 463 (1985).

    4. The search warrant was not found to be valid based on probable cause, but was executed by government agents in good faith. See US vs. Leon, 468 U.S. 897 (1984) (called the good-faith exception).

    Exceptions to warrant requirements:

    1. Plain view doctrine;

    2. Exigent circumstances that would warrant prompt action to prevent destruction of evidence, escape, or some other consequence improperly frustrating legitimate law enforcement efforts, are present. See US vs. McConney, 469 U.S. 824 (1984).

    Limitations for the Exclusionary Rule:

    Evidence can only be suppressed if the illegal search violated the person’s own (the person making the court motion) constitutional rights. The exclusionary rule does not apply to privacy rights of a third party. However, there is a narrow exception to this standing requirement, the jus tertii (third party rights) standing exception.

    The defendant cannot take advantage of the situation (police breaching rules) to turn the case to his advantage, in face of other evidence against himself. This falls under the exigent circumstances exception.

    The Silver Platter doctrine which was ruled unconstitutional in the case of Elkins v. US, 364 U.S. 206 (1960). State officials that obtained evidence illegally were allowed to turn over evidence to federal officials, and have that evidence be admitted into trial.

    Also, see the bad faith doctrine for contrast or a reverse of the good faith exception: Scott vs. US, 436 U.S. 128 (1978)

    Model code of Pre-Arraignment Procedure – SS 290.2(4)(1975) – A motion to suppress should be granted only if the court finds the violation to be “substantial,” as determined from the consideration of all circumstances, including:

    a) the extent of deviation from lawful conduct;
    b) the extent to which the violation was willful;
    c) the extent to which privacy was invaded;
    d) the extent to which exclusion will tend to prevent violations of this Code;
    e) whether, but for the violation, the things seized would have been discovered; and
    f) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceeding in which the things seized are sought to be offered in evidence against him.

    Suppressing evidence in civil proceedings might be challenging.

    • Avattoir says:


      The searches weren’t executed on any journal or journalist. Just because the seizures may turn out to include materials relating to the non-journalist activities or communications of someone who some (not even Hannity) claim ‘might’ do, at a stretch, something characterized loosely as kinda sorta cockeyed form of journalism (namely, propaganda) does not place the searches on Mickey Medallions’ premises within the category covered by that law.

      • Soldalinsky says:

        Why comment when you have no idea what you are talking about?  You should read up on agency relationships.

        This is serious stuff bro.

        • bmaz says:

          Avattoir is right. Whut?

          But, hey, you whipped out a reference to the inane “Model Code of Pre-Arraignment Procedure”.

          That’s pretty rich. I do this for a living and had no idea there was a “model code” for that. Hilarious.

        • Avattoir says:

          Now I’m kind of intrigued on whether you’ve actually ever been inside a courtroom – and in what capacity.

        • earlofhuntingdon says:

          You’ll need a better precedent.  The PPA is unlikely to apply.  This was not a third-party search.  It was the search of a target.  The target is not a publisher or journalist.  Materials seized were not intended for dissemination or publication.  On the contrary, they Cohen and Hannity have stated they expected such materials to remain private. They were either personal or business related, and thus not covered by privilege, or, charitably, intended for the purposes of providing confidential legal advice.

          Even were the PPA to apply, a standard exception to its reach applies.  There was probable cause to believe a federal crime had been committed and that evidence of that crime might be at the locations searched.

          • earlofhuntingdon says:

            Further, the filter team would pull out such items, along with items subject to privilege.  If this were a search of Noam Chomsky’s or Glenn Greenwald’s lawyers’ offices, looking for material about to be published, you would have a better argument.

    • NorskieFlamethrower says:

      Your presentation is a very deep scouring of the weeds but I’m afraid that the end of the Mueller investigation AND Cohen’s situation will be a lot simpler and not involve any court pronouncements. Maddow had a warning that between now and May 3rd, between the House committee’s demand for Meuller’s evidence and the deadline for Trump to replace the chief of SDNY, we may not have Rosenstein or a SDNY case against Cohen.

  15. Avattoir says:

    POTUS response to consigliere Cohen’s plight: curl up & whimper. From this evening’s helping from WAPOs Leonig & Parker:

    Mark Corallo, a former spokesman for Trump’s legal team, said that unexpected raids like the one executed against Cohen “are generally reserved for mafia dons and drug kingpins.”
    “It is not every day that you see no-knock search warrants authorized by a federal judge on a lawyer and a law firm in white-collar matters,” Corallo said. “I don’t know how serious it is for President Trump, but it is very serious for Michael Cohen.”




    • Bob Conyers says:

      That’s an interesting article. Although it says Trump is busy looking for new attorneys, it only gives one name as a possible replacement for Dowd — Robert C. Bonner, semi-retired, briefly a federal judge, Navy JAG, federal prosecutor, head of the DEA under George H.W. Bush and head of of Customs and Border Patrol under George W. Bush. Classic old school establishment Republican. He must know Mueller very well.

      He would be a great choice for Trump, if he was starting out a year ago and Trump had a complete mental overhaul. At this point, I suspect Trump really needs a miracle worker who can operate outside of the normal patterns of the law and perform some kind of mind control over Trump. Bonner does not sound like that kind of guy.

  16. Wm. Boyce says:

    I’m not an attorney, but it seems to me that Mr. Trump’s “liberal” mixing of private and public business is what will be his undoing. It can’t come too soon.

    • earlofhuntingdon says:

      Well, he’s tweeting again, directly accusing Ms. Clifford, someone who is currently suing him, of lying about the threat to her in the parking lot, which was the reason Ms. Clifford claims she signed Cohen’s poorly drafted NDA. Mr. Avenatti might consider adding a defamation claim to her suit.

      The Don thinks he’s still in NYC, litigating in the press and using the same derision and implied threats.  Ms. Clifford has Mr. Avenatti.  Mr. Trump might think about adding to his depleted pitching staff.

    • KM says:

      4. Trump knows who the real muscle-thug was, and this doesn’t resemble him at all.

      Now that would be some grade-A trolling by Team Daniels.

      • Trip says:

        Ha! Yeah. I think Avenatti wins for expert trolling, in general.

        “People are saying” (sorry couldn’t resist) that the sketch looks like Jon Bon Jovi.

    • earlofhuntingdon says:

      One might ask why the President of the United States is taking such a personal, even obsessive interest in an alleged assault on a mother and child in a grocery store parking lot ten years ago.  If the mayor of Los Angeles or Chicago did that, he wouldn’t have time to do his job.

      Systemically, it’s a small crime, routine in numbers if not specifics, and the statute of limitation would have run on it.  Does Trump intend to pardon the guy?  Or is he using his office to influence private litigation in which he has a personal interest?

      That would be odd, given that the alleged assault is not part of Ms. Clifford’s suit.  But by accusing her publicly of lying about it, he is using his office for private gain.  That is, he hopes to ruin Ms. Clifford’s credibility and thereby improve his chances of winning the suit Ms. Clifford filed, asking the court to declare Mickey Medallion’s NDA void.  Were Ms. Clifford to win, she could talk freely about her alleged sexual affair with Donald J. Trump, while his then wife Melania was feeding her newborn baby boy.

      Some president.

      • Trip says:

        I don’t think Melania has any illusions about WHO Trump really is, even if she ever did at the start. Trump’s concern in that regard must have something to do with pre-nup caveats and/or a newer agreement since Trump won the presidency. Trump never shows concern for people unless there is somehow money and power attached to it.

        • earlofhuntingdon says:

          In addition to the specifics of each problem, Trump just likes to “win”.  However he defines that, it always includes causing the other side humiliation and pain, especially in a woman.

          It’s as if the Don always thinks about the havoc his mother could have caused playing with those scissors.

            • earlofhuntingdon says:

              Haley has little experience in foreign affairs, but she seems reasonably competent about process.  She would have made any announcement about Russian sanctions because State, Defense, Kelly, etc., would have signed off on it.

              The odds are that Trump found out about it late in the process, was enraged that he hadn’t learned sooner about something so dear to his heart as protecting Vlad, and changed the game plan.

              The Kudlow Kid was out covering for him, to make it look like it was Haley who changed the plan.  She pulled him up short.  Which means she’s now on the outs with the Great Trumpini.

    • SpaceLifeForm says:

      I like door number 1.

      Attorney General Eric T. Schneiderman of New York is moving to change New York state law so that he and other local prosecutors would have the power to bring criminal charges against aides to President Trump who have been pardoned, according to a letter Mr. Schneiderman sent to the governor and state lawmakers on Wednesday.


      [I do not think it matters long term. Cohen is not the big player. But it is interesting bait. Does Don Don force Cuomo to grant? Or does POTUS fire Mueller?

      Decisions, decisions.

      Seems like a Three BIg Mac Night]

      • earlofhuntingdon says:

        Mickey Medallions is the quintessential middle man who can lead to the big cheese, as well as to lower level players who were involved at the execution stages.  He works directly for the big guy, and tells the little guys what he wants done.

        He’s a cut-out, but it’s all on him unless he can be persuaded to talk.  Frankie Pentageli with his cigar and dreams of failed Roman plots.  I wonder if Mickey has an older brother who lives in Sicily.

        • earlofhuntingdon says:

          Mickey Medallions father-in-law got him into the taxi business.  His uncle owned the Brooklyn social club frequented by top Italian and Russian organized crime figures, and once housed the offices of the head of the Russian mob in the US. 

          It was apparently his father-in-law who got him the job with Donald and the Trump Org in 2006, in part to firm up the conduit of Ukrainian and Russian money that was buying into Trump branded properties. (TPM, et al.)

          Mickey, too, was one of the owners of that club, along with others in his family, and “gave up” his interest only in January 2017.  He has a lifetime of Ukrainian and Russian connections.  He’s known Felix Sater for decades.

          SDNY and Mueller might need to hang a life sentence over his head to have a chance of flipping him.  He’s half Fredo, half Sonny, and no Michael, but he’s likely to lose family support only if he talks too much.

          • SpaceLifeForm says:

            As I mentioned before, Cohen learns how to spell Kompromat this week. As in, RSN (Real Soon Now).

            The next 24 hours will be rich. As in, seriously rich Metadata.

      • SpaceLifeForm says:

        Apologies on the misspell. Can I apply for clemency?

        The loophole, as it appears to me, is that if, in this instant case, is that if Cuomo grants at state level, a state pardon (clemency), that evidence can be effectively buried under the current NY State Law.

        I.E., it may potentially be used in an attempt to hamstring SDNY.

        And then at some point, this heads to SCOTUS, and we will still be discussing this years from now,

        And utimately, it will get down to States Rights vs Fascism.

        Think the 2018 midterms are not important?

  17. harpie says:

    David S. Joachim@davidjoachim

    Cohen floats possibilities for special master to vet Trump documents: Bart Schwartz of Guidepost Solutions, Joan McPhee of Ropes & Gray LLP, Tai Park of Park Jensen Bennett LLP or George S. Canellos of Milbank [Bloomberg link]

    • harpie says:

      erica orden @eorden  
      [quote] In a new court filing, prosecutors in the Michael Cohen case have provided their recommended names for a special master. They are all former magistrate judges:
      1. Hon. Frank Maas (Ret.) 2. Hon. James C. Francis IV (Ret.) 3. Hon. Theodore Katz (Ret.) [end quote] 

      • earlofhuntingdon says:

        Among other things, retired magistrates might be able to devote nearly his full time to the review, cutting delays.  Compare that to a lead partner at a large Manhattan firm, who would have to delegate a great deal and fit into her already crammed schedule.

    • harpie says:


      [southpaw Retweeted Big Cases Bot] [with link]
      SDNY files its update on timing for sending copies of seized records back to Cohen for privilege review. 

    • harpie says:

      Here’s Chris Geidner with more on some of the people:
      [quote] Cohen’s lawyers recommended four names, including Giuliani’s former Criminal Division chief from when he was SDNY USA (Schwartz) and a person who worked closely w Khuzami (running the Cohen investigation for SDNY) in SEC enforcement (Canellos). [end quote]

    • Bob Conyers says:

      Wow, that’s nuts. Unfortunately, but not surprisingly, it’s being reported largely at face value instead of being described as it is – an extremely radical groundless move. Once again, the media is selling this as an abstract conflict between two unknowable, unjudgable sides with equal value to their opinions.
      “The letter is largely a product of Trump’s closest allies in Congress, including two — DeSantis and Indiana Rep. Todd Rokita — seeking statewide office.”

      “A slew of House Freedom Caucus members also signed on, including GOP Reps. Dave Brat, Andy Harris, Andy Biggs, Jeff Duncan, Paul Gosar, Jody Hice and Ted Yoho. GOP Reps. Matt Gaetz and Claudia Tenney signed on as well.”

      • bmaz says:

        Two of them, Gosar (Palin’s Dentist) and Biggs, are from here in AZ. They are one of the dumbest (think Gohmert) jerks in Congress, that would be Palin’s dentist, and another guy, Biggs, not quite as dumb, but every bit as Tea Party craven. They are embarrassments to the nation.

        • Rugger9 says:

          However, Gohmert is the Padishah Emperor for Life in stupid (h/t Charlie Pierce) but these two give him a run for the money.  Honorable mentions to McCarthy and Nunes from CA.

          • Avattoir says:

            Has anyone ever collected primary evidence of McCarthy having the personal capacity to form a coherent sentence?

  18. Bob Conyers says:

    Talking Points Memo has an interesting wrinkle — don’t know if others have covered it.

    The attorneys representing Cohen in the SDNY case work for a firm paid by the Trump Campaign. Campaign funds can pay for legal fees of people related to campaign work they did, but they cannot be used to pay for unrelated legal fees — such as an investigations into taxi medallion weirdness, money laundering, false financial statements to get money for payoffs, etc. Expenses that are Mueller-related could be arguably paid for by the campaign. It’s less clear what happens if the case is SDNY-related.

    If Cohen is being investigated for crimes unrelated to the campaign, then there’s the obvious question whether the attorneys are being improperly paid by the campaign. If they’re not being paid by the campaign, then the question is who’s paying? Maybe Cohen has enough money in the bank to pay himself, maybe he doesn’t.

    • earlofhuntingdon says:

      Excellent questions.  You’d think Cohen, Trump and their supporters would at least set up a legal defense fund and pour the money through that. But that might require an accounting of inputs and outgo, something that the Don seems to avoid more than germs.

      If Cohen worked on the 2016 campaign and the alleged crimes related to it, one would think the 2016 campaign might pay his fees.  It’s not clear that the crimes SDNY is investigating are campaign-related.  Allegations about his taxi and other businesses would not be.  Nor would they have anything to do with Trump’s 2020 campaign.  I don’t think the Trumpian default of when in doubt, put it on somebody else’s tab, works here.  But I assume paying that tab is an essential ingredient in keeping Mickey Medallions forgetful and quiet.

      The amount paid to McDermott Will is well over $200,000.  I would expect SDNY to get around to questioning the source of those funds as they get closer to an indictment.

  19. maestro says:

    Anyone else get the sense that the SCO has decided to conclude the Manafort case before taking any further public steps against other targets? Pure speculation of course, but I wonder whether they’re going to be quiet until after trial in September. The only indications we have to the contrary are those reports sourced to the president’s lawyers regarding some kind of interim “obstruction report.” So who knows, I guess.

  20. Jill says:

    Seems they are now turning on one another:

    In an appearance on ABC’s “The View” earlier Wednesday, Comey said he ordered the probe that eventually led to McCabe’s firing, and believes McCabe lied about his conversations with the media

    I am pretty sure being late for work did not have these people demoted, fired, resigning:

    James Comey, FBI Director (fired)

    Lisa Page (moved from Mueller team) FBI Attorney, McCabe staffer

    Peter Strzok (moved from Mueller team) Deputy Asst. Dir., Counterintelligence Div.

    Andrew McCabe, FBI Deputy Director (fired)

    James Baker, FBI General Counsel (reassigned)

    Bruce Ohr, Deputy Asst. AG (demoted)

    James Rybicki (steps down) Chief of Staff, FBI Director

    Rachel Brand (resigns) Assoc. AG, DOJ Office of Legal Policy

    David Laurman (steps down) Chief, DOJ National Security Div. Counterintelligence, Export Control Section

    *Sally Yates (fired) Acting DOJ IG

    Peter Kadzik (leaves) DOJ Asst. AG, Congressional Liaison

  21. earlofhuntingdon says:

    I’m pretty sure several were fired for doing their job. Your list is the sort of blatant misrepresentation that would draw censure from, say, Judge Wood.

    You must often ask about the airspeed of unladen swallows.

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