After Judge Kimba Wood Rules Any Privilege Fight Would Have to Be Public, Cohen or Trump Withdraw Three Claims of Privilege

When Special Master Barbara Jones first reported privilege designations on matters seized from Michael Cohen on June 4, she found that three of the hard copy documents over which Cohen or Trump had claimed privilege were not.

1. Contents of Eight Boxes of Hard Copy Materials: Out of 639 total items consisting of 12,543 pages, the Special Master agrees with the Plaintiff and/or Intervenors and finds that 14 items are Privileged and/or Partially Privileged. The Special Master also finds that 3 items are not privileged.

Later that week, on June 8, Judge Kimba Wood ruled that if Cohen or Trump wanted to dispute any of Jones’ recommendations (it was Trump, not Cohen, who raised the issue), the legal argument (but not the contested documents) would have to be public.

With respect to the President’s letter dated June 6, 2018, (ECF No. 75), the Court agrees with the Government that Plaintiff and Intervenors’ objections should be filed publicly, except for those portions that divulge “the substance of the contested documents,” (ECF No. 76, at 1), which should be filed under seal and ex parte.

Jones has just submitted an amended report from those same materials, effectively reporting that Cohen and Trump now agree that the three documents are not privileged.

After no objections were filed in response to the Court’s Amended Order dated May 31, 2018 [Dkt. No. 70], and pursuant to the Procedures set forth in the Special Master’s report dated May 29, 2018 [Dkt. No. 65], the Plaintiff and/or Intervenors withdrew certain Privileged designations. Therefore, the Special Master amends its Report and Recommendation dated June 4, 2018 [Dkt. No. 72], and the following designations are being recommended to the Court for its review:

1. Contents of Eight Boxes of Hard Copy Materials: Out of 639 total items consisting of 12,543 pages, the Special Master agrees with the Plaintiff and/or Intervenors and finds that 13 items are Privileged and/or Partially Privileged and one item remains under consideration by the Special Master.

Perhaps it wasn’t the threat of publicity surrounding the privilege claim, but it sure seems likely Trump preferred to have SDNY look at those files than to have to tell the rest of us what they pertained to.

28 replies
  1. earlofhuntingdon says:

    For now, at least, we won’t learn the contents of the three documents.  We also won’t learn about the Trump legal arguments for keeping each of them privileged.  That might have revealed claims about relationships we have not heard yet.

  2. Trip says:

    Trump knows everything that Cohen might have that could be used against him, right? Why isn’t Giuliani dangling pardons there? Is the exposure via Manafort much worse?

    • SpaceLifeForm says:

      “Trump knows everything that Cohen might have that could be used against him, right? ”

      Doubtful, unless leaked at this point.

      “Why isn’t Giuliani dangling pardons there?”

      Rudy knows there is dirt on him, and wants to distract?

      “Is the exposure via Manafort much worse?”

      Possibly. What if Davidson has dirt (blackmail material) on all of the players you mentioned?

    • earlofhuntingdon says:

      Trump might know.  Does he remember and know what it means if he does?

      Manafort’s case is further along, his trial date is already on the docket.  And he may know a few big things.

      Mickey is small by comparison.  But like the driver for Stalin’s Beria, he knows where a lot of things are buried, having done some of the digging himself.

      Trump’s lawyers will eventually turn their attention back to Mickey, but by then it may be too late, especially if he keeps changing them or keeps Rudy.  Mickey has a younger, more vulnerable family that he seems to care about more than Manafort does for his.

      I shouldn’t be, but I am surprised at how cavalier Trump is treating a guy like Mickey.  Like Fredo Corleone, Mickey may not the brightest bulb in the pack, but also like Fredo, he saw and remembers a lot.  And there’s Gates, who doesn’t seem to be getting any of Trump’s love either.  In the end, Trump’s inability to focus or care for another living thing may be what does him in.

      • posaune says:

        I’m wondering how Trumps keeps it all straight.   There are sooo many players, Mickey, Paulie, Bobby, Papadolly, Van der Zwekie.     So many people, so many crimes and time is running faster.   I guess he gets the meme of the day from Rudee.

      • Bob Conyers says:

        It’s been a recurring theme here how cavalier Trump’s treatment of his own defense has been, so from that perspective it’s not surprising how dismissive he has been toward Cohen.

        All I can think of is that Trump knows he’s screwed if an actual case is brought against him, so he is going to handle this the way he has always handled problems. It’s going to get worse for a lot of people before this is over.

      • Trip says:

        @earl, if they were going to argue potential attorney/client privilege on documents etc., wouldn’t they have seen those documents?  I realize they decided not to argue because they only wanted to do it in secret, and the judge nixed that. Or was this a blanket approach to every document, sight unseen?

        • earlofhuntingdon says:

          Cohen and Trump’s attorneys will have seen the three documents.  The public hasn’t seen them or read their arguments for why they ought to be privileged.

          That they quickly gave up the claim when they would have had to argue it in public, suggests either a disagreement among counsel on their worth or they are taking a flier that SDNY or Mueller won’t use them.  Or if they did, it might not be in as public a way as an argument in open court.

          But their initial stance would seem to be a tell that there is information in them, or that they lead to information, they would rather the public not see. 

          One reason would be that they put the Don in a bad light or imply a visualization of his conduct that would. His first concern is always his image and appearance.  Sometimes a phrase or a word image is worth a hundred thousand tweets.

        • Trip says:

          But my point, or question rather is, they know what Cohen had and now what the SDNY has (in potential corroborating material) which could be used in cooperation. If Trump isn’t dangling pardons, is it because the documents aren’t directly damaging to Trump (on the face of it)? I mean, they are on top of this in real time, the same as Cohen’s lawyers.

          Rudy wasn’t talking about “cleaning up” the Cohen case with pardons, like he was with Manafort. Maybe Manafort’s cooperation would be MUCH more damaging. I had thought the opposite before.

        • earlofhuntingdon says:

          My point was about timing and attention span.  Manafort’s the problem today.  Mickey tomorrow. These guys operate with a horizon that is about six inches off Trump’s nose.

          I also think that Trump and the nitwits advising him underestimate how many crimes Trump might go down for – and which Mickey might know a lot about – besides those relating to Russia.

          Even crimes that are past the statute of limitations, if discovered, can lead to useful witnesses or to information about crimes that are still prosecutable.  They might simply demonstrate a pattern of behavior that precludes his re-election.

        • Bob Conyers says:

          I would not be surprised if Trump is assuming he can sell the Red Line nonsense – that nobody can connect him to Cohen’s case because that involves Trump’s personal business and his family.

          The Trump Foundation case makes it pretty clear that’s nonsense. I would guess before this is over that Trump’s business will be part of one or more big cases. But I think in his mind, Trump thinks there is a firewall as far as Cohen which allows him to focus on Manafort. Haberman’s stenography probably contributed to this idea.

        • earlofhuntingdon says:

          Hence, the beauty of having SDNY, not Mueller’s shop, tend to this.  No redline there, even by Maggie’s standard.

          But the redline argument was always Trumpian bullshit.  Had Mueller discovered substantial evidence of prosecutable federal crimes that were outside his remit, he would have handed the material over to another group within the DoJ for further investigation and prosecution. The reverse is also true.

        • Trip says:

          Speaking of red lines, I wonder if they held Ivanka in detention for crimes of the Foundation, if Trump would talk?  He likes keeping people’s families apart, so maybe he’d be okay with that hostage situation.

        • Bob Conyers says:

          The sad thing is that Trump is working on the understanding that his BS drives the public discussion. The reaction to the DOJ IG report and the child hostage taking at the border shows how the media enables blatant lies.

          He lies, and first the media simply reports it. The next round is a combination of  political horse race analysis, back and forth between his supporters and opponents, and maybe a small segment devoted to fact checking, along with a healthy dose of coverage of his follow up lies.

          On balance, Trump knows that any blatant lie he tells will get a significant majority of the coverage refusing to contradict him, and the coverage he gets on his home field — Fox, conservative internet, etc. — will be heavily slanted in his favor.

          We’ve been lucky so far that Mueller’s work has been by and large insulate from the media machine. But it’s highly doubtful whether the media will respond in a truthful, meaningful way if decides to break the system. They’re as cowed and outmaneuvered as James Comey was in the runup to the 2016 election.

  3. jdmckay says:

    Appreciate your work on this issue Marcie, some of your best to date AFAIC.

    I’ll just say thought, as with GWB… the light you shone on all the email, HD’s etc. and everyone just walked. I see Rudy all over media 24/7 blasting bs and asking for Mueller’s head, Senate repubs now calling for and end to Mueller’s investigation after IG report, and Trump lieing through his teeth about all this day in and day out. Polls show public turning against Mueller.

    I sure hate it, but if I had to bet I’d say Trump’s going to walk away unscathed and a lot of good people trying to expose him are going to get hurt or even jailed. Then we’ll be left to pick up the pieces some years down the road.

    Hannity and FOX drove GWB’s Iraq lies, not sure we would have gone in there w/out them. Looks like deja vu. It’s depressing.

    • obsessed says:

      I remember the disappointing earlier scandals, but I also remember Watergate and this feels more like that.

    • Avattoir says:

      You’re right. Resistance is futile, time to just give it all up, go to a dark corner, curl up in a ball and die.

      • Trip says:

        I’m not ready to crawl up in a ball and die yet, but the GOP does not care, and that is a major obstacle. In the words of Graham, “I don’t give a shit”. That about sums up the collective perspective from the GOP on killing democracy once and for all. Of course they all need to be voted out, but meanwhile they are pushing voter registration purges.

      • jdmckay says:

        I didn’t say that, think that, do that or tell anyone that.

        I don’t want to hijack this thread, so I’ll just say this.  Outside scope of EW’s posts, Trump as put crooks in charge of institutions across the board that make GWB’s foibles look like child’s play.  The “dike” is springing leaks so fast, we don’t have enough fingers to plug it.  A lot of people are going to get sick as a consequence.

        I appreciate and am glad to have reliable info EW and a few others provide.


  4. frankincalifornia says:

    What are the chances Mueller drops some significant new indictments soon?  Does Mueller need to get some things out before the mid-term season election starts?

    • emptywheel says:

      Cohen is likely to reach a plea deal in a month or so, barring a pardon. It’s unclear whether that would include crimes related to the Mueller inquiry or just the SDNY ones, but it would require cooperation with Mueller, surely.

      Other than that it’s unclear. We’ll know a bit more once the sentencing process for Papadopoulos starts.

      • bmaz says:

        Yeah, Cohen really does need new attys at this point. I am less concerned that they “have” to be former SDNY alums in order to get a deal. You want a competent lawyer, but that stuff doesn’t necessarily get you a better plea deal. People saying that bunk are too long removed from actual trial courts. Just have a decent lawyer, and his soon to be former attys were decent. It was NEVER about their ability to get a deal. It was all about their not wanting to be attorneys of record once there is a formally docketed criminal case.

  5. clairence says:

    Is there any significance to the fact that there were 14 items originally considered Privileged, but after Trump’s letter there are only 13 plus one being (apparently re-)considered?

    • Trip says:

      May be the same type of correlation as with Kushner, who owns a building with the number “666”. :)

      (Just Kidding. Or am I?)

    • emptywheel says:

      I don’t know what to make of that, tbh. It may be that it was related to the other three, and when they pulled the privilege claim for the other three she reconsidered the privilege of this one.

  6. Oldoilfieldhand says:

    Cohen and Trump now agree that the three documents are not privileged

    What are the odds that these documents are NDA’a with plastic surgeons? Asking for friend.

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