Government Wouldn’t Unseal Michael Cohen’s Warrants because “Many Uncharged Persons Are Named in the Materials”

Back on October 11, the NYT moved to unseal the search warrants targeting Michael Cohen, arguing the search was of utmost public interest. A bunch of other media outlets have since joined in. On October 25, the government responded, laying out a bunch of reasons why the warrants had to remain sealed. First, it described investigative reasons: unsealing warrants might reveal the identities of persons of interest in criminal investigations, might jeopardize cooperating witnesses, might disclose the full range of crimes under investigation, and might reveal what evidence the government had already collected in the investigation.

Courts have recognized numerous different ways in which the disclosure of sealed materials could interfere with an investigation. Search warrant materials often reveal “the identities of persons of interest in criminal investigations.” In re Search Warrant, 2016 WL 7339113, at *4; In Application of the United States for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283, 294 (4th Cir. 2013) (citing fact that “documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation”). The disclosure of sealed materials could also jeopardize the cooperation of persons in either the particular investigation or in future cases. Amodeo II, 71 F.3d at 1050. And even when some aspect of a criminal investigation is public, disclosure of a detailed affidavit could “disclose to the subjects the full range of potential criminal violations being investigated, the evidence obtained by the United States prior to the searches, and the information which the subjects and other individuals had provided to the United States or had failed or declined to provide.” In re Sealed Search Warrants Issued June 4 and 5, 2008, 08-M-208 (DRH), 2008 WL 5667021, at *4 (N.D.N.Y. July 14, 2008); see also In re Search Warrant for Secretarial Area Outside Office of Gunn (Gunn), 855 F.2d 569, 574 (8th Cir. 1988) (public access outweighed by fact that disclosure would reveal the “nature, scope and direction of the government’s investigation”).

Let’s see: Cooperating witness, check (Cohen first proffered to Mueller on August 7). Crimes under investigation not already identified, check. Lots of evidence co-conspirators don’t know about, check. The other people being investigated … hmmm.

Indeed, the government’s second reason to keep the warrants sealed is to protect the privacy interests of third parties who are named in the search warrant, but not charged. The response stated clearly that “many uncharged individuals and entities are named in the” search warrants and other documents.

And in the specific context of third parties named in search warrant applications, that interest is especially weighty, because “a person whose conduct is the subject of a criminal investigation but is not charged with a crime should not have his or her reputation sullied by the mere circumstance of an investigation.” In re Search Warrant, 2016 WL 7339113, at *4. Moreover, unlike charged defendants, uncharged third parties whose involvement in or association with criminal activity is alleged in search warrant materials may find themselves harmed by the disclosure but without recourse to respond to the allegation. See In re Newsday, Inc., 895 F.2d at 80; Amodeo II, 71 F.3d at 1051.3

Here, as set forth in the Government’s supplemental submission, many uncharged individuals and entities are named in the Materials.

3 The Government has not notified the uncharged third parties that they were named in the Materials, in part because disclosure of that fact to certain of the uncharged third parties would itself impair the ongoing investigation.

Judge William Pauley has not yet ruled and, surprisingly, the press has not yet renewed their request given Cohen’s second guilty plea this week.

But read retrospectively, the government’s filing makes it clear that part of the reason it insisted on keeping the warrants sealed was to hide the other part of the affidavits covering Cohen’s lies to Congress and the underlying conduct. I’d be acutely interested to see how the government responded if they did make a renewed request, as I suspect it is all the more important to keep the materials sealed now.

Suffice it to say, though, that the charges Cohen originally pled to, even the campaign finance charges that implicated Trump and the Trump Organization, don’t implicate “many uncharged individuals.” As I’ll show in a later post, the lies Cohen told to Congress do implicate people beyond Cohen himself.

But the underlying Trump Tower deal itself — that’s where you begin to get into “many uncharged individuals and entities.”

55 replies
      • Eureka says:

        Right- to co-opt a phrase (or two), we cannot sleep on the wicked!

        I’m missing that pre-election nap some, though. (I want my justice and revelations and clues in manageable doses, I guess. But that’s not how this works…lol)

  1. BobCon says:

    “The disclosure of sealed materials could also jeopardize the cooperation of persons in either the particular investigation or in future cases” — is it possible that “many” persons may link to other Trump organization criminal business unrelated to the Russia conspiracy or the Daniels-type coverup payoffs?

    Because it seems feasible to me that early investigations into Trump and Cohen might have turned up evidence of a dozen different schemes, most not related to the well known election stuff, and SDNY might want to get as much as possible while they were boxing up his other files.

    I think one possible explanation for a lot of Trump’s behavior is that he knows how much exposure he has to crimes not under Mueller’s main focus. This seems like one possible link to those crimes.

    • emptywheel says:

      Yes. In his sentencing memorandum, Cohen refers to cooperating in an as yet unnamed NYS investigation.

      Michael has similarly met voluntarily with representatives of the New York State Office of the Attorney General (“NYAG”) concerning a state court action in which the NYAG has sued the Donald J. Trump Foundation and certain individual defendants, including Donald J. Trump. He also provided the NYAG with documents concerning a separate open inquiry. As above, Michael intends to make himself available to the NYAG to provide any additional cooperation it may request in these matters.

      • renfro says:

        Is this related?

        Donald Trump’s Former Tax Attorney Has Office Raided by Federal Agents
        President Donald Trump’s former tax attorney for over a decade, Edward Burke, had his Chicago office raided by federal agents on Thursday.
        Burke, currently serving as the chairman of the City Council Committee on Finance, assisted Trump with his taxes for 12 years and fought many legal battles for the real estate mogul to reduce property taxes in the Chicago area.
        Federal agents reportedly arrived at Burke’s office on Thursday morning unannounced and made everyone leave the building before placing paper over all of the windows, according to the Chicago Sun-Times. The nature of the visit was not known.


    • Drew says:

      “crimes not under Mueller’s main focus.” may end up being the bulk of how the grand conspiracy plays out. In other words, for Trump, his main play may well have always been profiting from illicit Russian money & influence. The various bits and pieces may well be connected, but they are connected via Trump’s mob boss mentality–and the fact that he is not that smart or strong a mob boss at that. The other conspiracies are all subordinate to that.

      • Trip says:

        I wonder if anything else will come out of the FLA lawsuit with Epstein. The T models was another endeavor that Trump was involved in and rumors swirl about the purpose of the (other women) business, outside of two top models. After the Miami Herald article, I went down the rabbit hole (of disgust) with names associated with Trump like Paolo Zampolli (Melania’s matchmaker ), John Casablancas, Ghislaine Maxwell and Jeffrey Epstein. The Trump Modeling gig only closed in 2017.

        What ever became of this?
        Sen. Boxer calls for probe into Trump Model Management

        Human trafficking and, if you dig deeper, some people allege sex trafficking of minors, with one or more of the people above.

        One more note: Models described as very young Eastern European or Russian. Since the Kremlin is basically a crime organization, I wonder how involved Putin was with this?

        • David Karson says:

          If one recalls, back in the summer and fall of 2016, there was a  woman who claimed that Trump “met” her at one of Epstein’s parties when she was 13.  At the time it seemed like a preposterous, crazy  allegation (in the words of Brett Kavanaugh “Twilight Zone” stuff!).  But after reading about  Epstein, and also Trump’s involvement with Stormy Daniels and  Karen McDougal, and then Steve Bannon’s allegations that there were dozens of women Trump “met” with  (according to the Michael Wolff’s Fire and Fury Book) and his comments about young woman while being on the Howard Stern Radio, and the “p____ tapes”,  Trump seems so corrupt  on so many different levels that I can’t say I am not 100% sure any more. Also,  in October 2016 at the same time Stormy Daniels was getting paid the hush money, the woman’s lawyer  mysteriously dropped the case.  Probably still fiction but with Trump, impossible to say any longer.

      • BobCon says:

        I agree there is very possubly a wide swath of stuff that may end up related to his Russian dealings. I just can’t help but wonder if there’s a basic level of criminality baked into all of his businesses – Trump steaks are actually from diseased dairy cows Devin Nunes paid him to cover up, Trump Water is a secret evidence disposal scheme involving Flint water and Rick Snyder, etc.

        Or on a less conspiracy theory level, he just routinely pays off every government inspector who comes close to his properties and cheats on all of his taxes.

  2. JD12 says:

    I’m beginning to wonder whether the Trump Tower Moscow deal was even about the money. The Trump children (only people he trusts) could fly to and from Moscow to “supervise,” and once construction was done they would have a meeting place that they could control. (Erik Prince had a plan to set up a secure room at Trump’s Washington hotel.) It would’ve been a better back-channel than the one Kushner supposedly tried to set up, which sounded more like a front-channel.

    It also seems strange that Cohen would take the lead in the project. In literally every other deal the Trump Org has done, someone named Trump took control over it.


    • pseudonymous in nc says:

      I think that’s overdetermined. I think it was about the money until the Russians made clear it was about the presidency.

  3. david sanger says:

    also in the Sentencing Submission, Cohen has met with SCO (7x) , SDNY (2x) , NY AG (about Trump Foundation case), provided documents to NY AG (about yet another open inquiry) and met with NY Dept of Taxation and Finance (about ?).

    I wonder what else the NYAG is investigating that involves Cohen?

    • emptywheel says:

      Ah, see you were up reading stuff late at night.

      I was thinking last night, lying awake, how having a big eponymous corporation affects the behavior of a narcissist. Meaning, as Trump realizes that not just his presidency, but his company, are in serious jeopardy, how will his defense change?

        • Bobby Gladd says:

          Will he go all the way — e.g., to de facto martial law and effectively suspending the Constitution — should it prove the only “way out”? I waffle on that speculation. On the one hand, he’s clearly just a belligerent bullshitter who may eventually fold his hand, on the other, his life M.O. has been one of pushing the envelope as far as necessary.

          • pseudonymous in nc says:

            I think that sets too high a bar: if you’re waiting for that stuff, it’s too late. The power to fire and the power to pardon are legitimate powers of the presidency, but granted in the assumption that misuse will lead to impeachment and removal. If there’s no will to convict, then the legitimacy of the US Senate becomes entangled with the legitimacy of the president. If SCOTUS intervenes, its legitimacy becomes entangled. #ETTD

      • pseudonymous in nc says:

        He’s surely known that to some extent — or if he hasn’t, his spawn have — since reading the forfeiture clauses in Manafort’s plea, which showed the intention to leave Paulie the Rug without a rug to stand on. The Marine One babble seemed to suggest that if it was a choice between the Family Business and the presidency he’d dump the presidency, but I also think that as with Robert Maxwell’s businesses, any kind of scrutiny would collapse the whole thing.

        Like bmaz, I think it will get more batshit, but since the Family Business is an extension of his narcissism, we are going to get into a cycle of narcissistic injury and narcissistic rage, perhaps directed towards more legitimate businesses (like GM) and perhaps against  constitutional institutions.

        • pseudonymous in nc says:

          Tangentially, the Miami Herald’s remarkable Epstein story reminded me that Ghislaine Maxwell — whose name adorned the yacht her father fell/jumped off, and whose family fortune vanished after his death — spent years as Epstein’s procurer.

          That probably tells you where my thinking is.

        • BobCon says:

          I think a big part of his craziness will ensue from the state investigations he is facing or will face. His corporate interests depend to a large extent on the good graces of state governments, and he can’t pardon his way out of those messes, and his political appointees can’t stonewall their investigations into corporate dirt directly. His judges also have limited authority, even if they wanted to intervene.

          He lucked out with Florida, and now anything Maralago related will be swept under the rug, but it’s gotten a lot harder for Cuomo to play ball with him in NY, and NJ is tougher too. Cy Vance Jr. knows he can’t take any more calls from Kasowitz either.

          Tax investigations will mesh up nicely with work the House will be doing, and I’m sure there are opportunities for Elijah Cummings to hand off investigations to the states if he senses DOJ political appointees will block federal prosecutions.

      • Pete says:

        I looked up eponymous corporation and there was a picture of Donald J Trump.

        On the other hand, I now no longer think your WEBsite and your name is eponymous per a sideways read of your contributor description at HuffPo.  It’s your nom de plume and your WEBsite name that is eponymous.  Facts matter!

        All in jest – I need it.

    • Trip says:

      He was co-president of Trump Entertainment, maybe he knows something there, with the bankruptcies, taxes, defaulted loans, whatnot? Also he served as Vice President of the Trump Organization, so there’s that. He is like an octopus, tentacles intertwined in all things Trump. The Donald made a mistake when he tossed him under the bus, methinks.

  4. cd54 says:

    Just wondering if any Cohen materials previously ruled privileged might have lost privilege after Cohen started cooperating (crime fraud exception), or would that require a filing?

    Including Hannity — they dreamed.

  5. Trip says:

    ‘regular contact’ with Trump legal team when crafting false statement to Congress

    President Donald Trump’s former personal lawyer Michael Cohen said Friday he was in “close and regular contact” with Trump’s White House staff and legal team when he prepared a statement for Congress that he now says falsely downplayed Trump’s effort to land a Trump Tower Moscow deal during the 2016 presidential campaign…In the filing, Cohen’s lawyers say his false statement to Congress arose out of loyalty to Trump, who they refer to throughout as “Client-1.”
    “Furthermore, in the weeks during which his then-counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House-based staff and legal counsel to Client-1,” his lawyers wrote.

    Does this apply?
    And who would be characterized as “legal counsel”? White House-based staff and legal counsel Is this only his private attorneys or also WH attorneys, including McGahn?

  6. Naomi says:

    “… and might reveal what evidence the government had already collected in the investigation.”

    the search was authorized 18 June…   how much more has been collected and investigated since?    who was on those ipods?

    unsealing the June 18 names would be unmanageable…   and I’m already exhausted

    Keep reading for us Marcy!

  7. Trip says:

    Right around the time, in June, when Cohen’s office was being raided, Mueller spoke with Artemenko (the pro-Russian Ukrainian with the peace plan that removed sanctions on Russia, would remove Poroshenko as corrupt in Ukraine, and then Russia would “lease” Crimea for 50-100 years). Somewhere around that same time, Viktor Vekselberg, oligarch and bud of Pootie, who is the subject of U.S. sanctions, was searched at the airport. Cohen got a half a million dollars from him, and Mueller’s team questioned him about that. *(I’m sorry I’m not as exact as Marcy on dates, her brain is insane, in a good way).

    Side note: In the press, Cohen changed his story 4 times regarding the peace plan.

    Let’s not forget that Cohen was also at the RNC:

    Trump’s personal lawyer will serve as key RNC finance executive

    The RNC said in the press release that Cohen has “been an active spokesperson and advisor for the President during his interest in seeking office since 2011.” …The RNC’s new roster also features a few other Trump backers, like Elliott Broidy, who was national vice chairman of the Trump campaign and vice chairman of the Presidential Inaugural Committee. Broidy will now serve as the RNC’s national deputy finance chairman. Brian Ballard, who worked on the Trump campaign in Florida and was vice chairman of the Presidential Inaugural Committee, will now be regional vice-chairman of the RNC. …”Together this team will employ their extraordinary talent and understanding of Americans across the country to maintain and build upon our unprecedented fundraising success,” the RNC said in the press release.

  8. Avattoir says:

    If you knew Bill Pauley / Like I know Bill Pauley

    Oh. No. / No way in hell

    But you needn’t feel compelled to rely on some disembodied yet steadily ossifying online avatar. There’s more than enough in Judge Pauley’s body of judicial opinions to predict deference to ongoing official investigative authority.

    (I don’t mean to come across as critical here. There’s an understandable tendency to associate Pauley with his 2015 opinion in the ACLU case challenging the federal government’s bulk data collection program; but there’s also an unfortunate inclination to conflate judicial opinion with policy aspiration. He didn’t go where I would have (tho by that measure, neither did Judge Leon nor the 2nd CCA panel); but his opinion was certainly arguably correct (indeed, compared to the rush to hypocrisy by others, admirably so, especially if judged just by the standard of Ash in Alien).


  9. eVille Mike says:

    If prosecutors felt pressure from DOJ, or if the White House made a move against Mueller, could they drop their request to keep the seal in place – as an attempt to get the info out to us?

  10. earlofhuntingdon says:

    George H.W. Bush was born with a silver spoon in his mouth: His forebears had the wealth and status to travel and do business with John D. Rockefeller.  HW’s father, Prescott, was a Senator from Connecticut and longtime partner at powerhouse bankers, Brown Brothers Harriman.  Along with the House of Morgan and the law firm Sullivan & Cromwell, it was home to some of the most powerful men in twentieth century America, including Bob Lovett, W. Averell Harriman, and Alan Greenspan.

    By the time HW graduated, after the end of the Second World War, Yale had been the family school for a hundred years.  A made man with a good war behind him, he turned down Brown Brothers to go into business in the then burgeoning West Texas oilfields, albeit with dad’s friends and colleagues as a backstop.  It was also a good place to run for office.  That illustrates that risks for him, while real, were personal, not existential, as they are for people born without wealth and family connections.

    HW spent decades in government, much of it associated with the intelligence community, including a stint as director of the CIA.  It is possible he was recruited when he was at Yale, then the CIA’s principal hunting ground for top men.

    Like Dick Cheney, he worked hard at doing whatever his political patrons needed doing, a trait that made them both indispensable.  That would have led to laundering a lot of dirty linen.  It also put HW at the forefront of conflicts, including Reagan’s scandalous and criminal support for the Nicaraguan Contras, which the CIA used eventually to overthrow that country’s leftist government.

    Unlike his son, HW had talent, courage, and discipline.  He understood the value of restraint as well as the utility of power.  He respected institutions, in part, as a principle of good government, in part, because he had the status and network that allowed him to know their leaders personally.  They were part of the same club and they ran the place.

    Regarded as humble for such a powerful man, his humility was many things.  It was good manners, it was good management.  Both stood out in a world of wealth and power.  It was also a disarming defense of that wealth and power.

    George H.W. Bush combined that humility with disciplined networking: he spent hours a day on the phone and writing by hand personal notes to the high and mighty and to the average Joes and Janes who made things work.  He won the birth lottery, but he practiced to perfection the oblige that came along with the noblesse.  He is the polar opposite of the current president.

    • Milo says:

      Yeah, other than embracing racism, assaulting women, supporting systemic inequality, and pardoning the worst kind of criminals, an impressive man.

      • NorskieFlamethrower says:

        The Bush family is a monster that just won’t die…kinda like the Clintons. The Bushes and the Walkers go back to the Gilded Age of the first American empire after 1877 and of course Mrs. HW is a direct  descendant of one of our most forgettable but representative antebellum Presidents, Franklin Pierce. And Trump, of course, is gunna show up at the God father’s funeral where the crowd will include all the capos and their consiglieres of the existing American oligarchy. I remember when a sitting congressman from New York said shortly after 911: “The chickens are coming home to roost.” It wasn’t long before we all realized those chickens never left the coop.

    • Vern says:

      Not to speak ill of the dead (OK I am), but the common appellation “Bush Crime Family” wasn’t inaccurate.

      The Bush Crime Family goes way back, e.g., with Prescott Bush and the attempted coup on FDR he and others tried to get Smedley Butler to lead.  HW was in up to his neck in Iran/Contra and likely involved in JFK’s assassination.

      The Bushs have escaped any accountability.  I would argue that our many failures to ensure accountability over the last few decades is a key reason our country is so messed up and people have lost faith in institutions.

      Fuck him.

    • Jaag says:

      He personally applied pressure to stop prosecutors from going after Spiro Agnew. In that crucial respect he is the same as DT

    • earlofhuntingdon says:

      For those unwilling to delay their harsher criticism until the remains cool to room temperature, there’s this.  The Intercept’s summary of why Mr. Bush is as bad or worse than his current successor is actually tepid.  His elite humility and self-deprecating humor aside, Bush 41’s conduct, for example, in stiffing the Iran-Contra prosecutor, Lawrence Walsh, was reprehensible.

      Reagan and Bush’s CIA stonewalled Walsh’s investigation from beginning to end.  Dick Cheney was relentless in criticizing it from the House, and then became Bush 41’s SecDef, making sure the lid stayed closed.  And Bush himself pardoned former SecDef Caspar Weinberger and several other key Iran-Contra figures, ensuring that no one in the American government, including chief of operations Ollie North (his conviction was vacated for technical reasons) paid a price for their crimes.

      Bush 41 and Cheney went on to mastermind the Invasion of Iraq 1.0, which involved potential serial war crimes.  Bush also repeatedly happened to be around the corner when some of the CIA’s dirtiest linen came out.  Then there’s Bush and oil, a serialized novel worthy of Dickens.  The House of Bush has much to answer for beyond Bush 43.

      Trump, lamenting his futile search for a few good men, no doubt has his WH Counsel considering how best to emulate him.

  11. alaura says:

    HW’s biggest impact on the world is decades of death and misery in South America, and his spawn W, who unleashed decades of death and destruction in the Middle East. They’re war criminals, and we are still dealing with their rotten tenures. We have 5000 asylum seekers suffering at our Souther Border, and an untold number of domestic terrorist plotting to kill people coast to coast.

  12. J R in WV says:

    Watching some of the network news, NOT ONE WORD about Iran-Contra, death squads in Central America, asking the Iranians to keep their hostage diplomats hostages until after the inauguration. NOT ONE WORD!!

    Also not a word about Prescott Bush and his support for German fascism and Mr Hitler as he took over control of Europe. No surprise there, either!

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