Lawyers in Cohen Case Set to Hash Out 2 Disputes Over Cache Seized in Raids
Posted May 29, 2018 7:21 p.m. EDT
Updated May 29, 2018 7:22 p.m. EDT
When it comes to President Donald Trump’s legal health and welfare, few recent events have borne as much potential risk as the extraordinary raids federal agents conducted last month on Michael Cohen, his longtime lawyer and fixer. Seizing boxes of documents and about a dozen cellphones, iPads and computers, the agents were looking for evidence that Cohen broke the law in his wide-ranging business deals — among them, hush-money payments that he made to women who claimed they had affairs with Trump.
While it is possible that the early morning searches could eventually result in criminal charges, the broader inquiry that led to them is, for now, bogged down in two legal disputes about the cache of materials that was seized. On Wednesday morning, five sets of lawyers in the case are expected to appear in U.S. District Court in Manhattan to work toward resolving both of the quarrels — negotiations that will affect how the case moves forward.
The most important (and, perhaps, most complicated) argument concerns the question of whether any of the paperwork or data swept up in the raids may be protected by the lawyer-client privilege that Cohen shared with Trump. After the raids, Cohen’s lawyers asked the judge in the case, Kimba M. Wood, for an order to prevent the government from making that decision, saying that they and lawyers for Trump were best suited to determine the issue of privilege. Calling that request unusual, federal prosecutors told Wood that, under normal circumstances, a team of their colleagues who were not directly involved in the matter would be the ones to sort through the materials and set aside any that contained privileged information.
But Wood decided to appoint an independent arbiter, or a special master, to review the materials. And for the past four weeks or so, the special master, Barbara S. Jones, a former federal judge, has been doing just that, slowly returning to the government those documents that are not protected by lawyer-client privilege.
The process will have a significant effect on the case, shaping the contours of the evidence the government can use in determining whether Cohen committed any crimes when, in the run-up to the 2016 elections, he sought to silence two women who say they had affairs with Trump: Stephanie Clifford, a former pornographic film star better known as Stormy Daniels, and Karen McDougal, a onetime model for Playboy. Jones’ rulings on the seized material could also help or hinder the government’s ability to investigate claims that a shell company owned by Cohen took millions of dollars from a firm with ties to a Russian oligarch and from several major corporations.
Jones’ review has taken place in private and has so far avoided being touched by the otherwise salacious nature of the case with its explosive mix of money, sex and presidential politics. But the second dispute that will be discussed in court Wednesday — one between Cohen’s legal team and Clifford’s lawyer, Michael Avenatti — has, for weeks, been playing out in public as a noisy media circus.
When Cohen’s apartment, hotel room and office were raided, some of the seized materials concerned negotiations between Cohen and Clifford’s former lawyer, Keith Davidson, who were working out the details of a $130,000 payment designed to keep Clifford quiet about her relationship with Trump. Avenatti has said he suspects that Cohen and Davidson secretly conspired to strike the deal to Clifford’s disadvantage, and he has asked Wood for permission both to appear and to formally intervene in the case.
Ostensibly, his reason for trying to enter the case is to get his hands on records seized in the raids that could be useful in a pair of lawsuits he and Clifford have filed against Trump: one for defamation in New York and another for breach of contract in Los Angeles. In a tweet Tuesday, Avenatti said he would take legal action against Davidson to obtain any documents relevant to the suits.
But Avenatti has also used his newfound celebrity in the case to wage a relentless publicity campaign against Cohen, Trump and other members of the Trump legal team in a barrage of social media posts and televised appearances on issues that have strayed beyond the boundaries of the case.
Last week, for instance, Avenatti criticized Trump for promulgating his so-called “Spygate” conspiracy theory and attacked Trump’s chief lawyer, Rudy Giuliani, for not having tried a case to verdict this century.
All of this — and more — impelled Cohen’s lawyers to push back in court papers, arguing that Avenatti was “fanning a media storm” and “smearing” Cohen. The lawyers have opposed Avenatti’s attempts to enter the case, condemning his “inappropriate conduct” and “creation of a carnival atmosphere." On Tuesday night, they continued their attacks, filing a letter to Wood to “bring to the court’s attention” the fact that last week a bankruptcy court in California imposed a $10 million judgment on Avenatti’s law firm.
While Wood may rule Wednesday on Avenatti’s requests, the review of the materials that prompted them is expected to continue for another few weeks.