reporter's notebook

So Far, Michael Cohen Has Far Fewer Privileged Files Than He Claimed

TPM Illustration. Photo by Getty Images/ Drew Angerer
June 5, 2018 12:26 p.m.

The next few weeks of the Michael Cohen probe will involve wrangling between two teams of lawyers — one representing the President and one representing Cohen — and court-appointed “special master” Barbara Jones about which of the items seized from Cohen by the FBI are covered by attorney-client privilege, and which are not.

Here’s a look at how the review process will work.

Jones was granted access to all of the materials seized from Cohen’s home, hotel room, and office in April 9 raids, plus the search warrants and the underlying materials used to obtain the warrants. But she is only assessing the documents that attorneys for Cohen and President Trump have said are privileged.

If Jones agrees with their determination, that material is withheld from prosecutors. But everything else is promptly turned over to the SDNY for use in their investigation.

Contrary to Cohen’s initial claims, it appears that most of the materials seized from his premises by federal agents are, by his own (later) admission, not protected by attorney-client privilege. Cohen’s lawyers initially argued that the government had seized “thousands, if not millions” of privileged communications, but have claimed a much smaller number of items as protected in their interactions with Jones.

On Monday, Jones announced the results of her review of an initial batch of 292,409 items, including physical documents and those on two iPhones and an iPad belonging to Cohen. Jones approved 162 of Cohen’s privilege claims and rejected only three.

Though she has many more documents to review, Jones’ initial update seemed like a win for prosecutors in the Southern District of New York  (SDNY), who have argued since the FBI’s April 9 raids that Cohen was initially making “overbroad” claims of privilege in order to delay their investigation.

Judge Kimba Wood last week imposed a June 15 deadline for Cohen’s team to complete their own privilege review, saying they were moving too slowly. If they fail to meet the deadline, a government “taint” or “filter” team — walled off from the investigators in the Cohen matter — will take over the process of determining what materials are privileged.

The other part of Jones’ role as special counsel is “adjudicating privilege disputes between the parties.” Wood has announced that the parties have within one week of Jones’ filings to submit objections to her determinations. Those objections should, she wrote, be “detailed enough for the Court to understand the basis or bases for asserting privilege and, if applicable, whether the material comes within the crime-fraud exception.”

No such objections have yet been filed. It’s not entirely clear what information the government has about the privileged materials as they decide whether or not to fight a particular designation.

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