What’s at stake in the legal fight that Michael Cohen’s attorneys are undertaking in Manhattan is admittedly complex.
In short: Cohen, as a lawyer, has represented a group of people, including President Trump. His emails and memos with them are covered by attorney-client privilege (unless they are discussing how to further or cover up a criminal act). Cohen’s legal team argues that no federal prosecutors should be involved in evaluating which documents seized in last week’s raids of his home and office are “privileged” (as the vernacular has it) — even prosecutors not working on Cohen’s case, which is who would normally do such a review. (Those prosecutors and government staff members make up what’s called a “taint” or “filter” team.)
Before a review can be undertaken by anyone, it needs to be clear who Cohen’s clients are. (After all, the government filter team can’t set aside privileged communications between Cohen and one of his clients if it doesn’t know whom he represents.) During a hearing last week, Judge Kimba Wood ordered Cohen’s attorneys to reveal those clients by Monday morning. They did, to some extent, identifying that Cohen had three clients in the past year: Trump, a former Republican fundraiser named Elliott Broidy and a third person who declined to be named. (This will no doubt be part of an extended fight in the courtroom on Monday afternoon.)
That filing also includes Cohen’s fundamental rationale for objecting to the use of any government attorneys in reviewing the seized material.
“As the Court is surely aware, there is a growing public debate about whether criminal and congressional investigations by the government are being undertaken impartially, free of any political bias or partisan motivation. It is in this climate that the Government executed an unprecedented search warrant — instead of using its less onerous subpoena power — upon the personal attorney of the President of the United States.”
This is a remarkable argument.
It’s true that there is public debate about whether the government investigation of Trump and his allies is impartial. But it’s also true that this debate is largely a function of Trump himself having fostered it.
Before he took office, Trump lashed out at U.S. intelligence agencies, accusing them of leaking reports about the existence of the investigation of Russian interference in the 2016 election. His first trip after inauguration was to the CIA in an apparent effort to rebuild his relationship with the agency, but, in the intervening months, he has consistently accused the Justice Department and the FBI of partisan bias — with very little evidence to back up the claim.
With the aid of Fox News Channel hosts such as Sean Hannity, Trump has played a key role in heightening skepticism of the FBI’s impartiality in its investigation of the president and his allies. The network seizes on nebulous or often minor criticism and uses it to build a shaky case against the investigation. Then there’s a feedback loop between Fox News and the president, in which he promotes the network’s arguments against the FBI investigation and the investigation by special counsel Robert S. Mueller III and Fox News, in turn, reports on the president’s response.
The “growing public debate,” in other words, is largely a function of Cohen’s primary client, Donald Trump, thanks to his outsize platform as president of the United States. Cohen’s attorneys are arguing that the FBI is viewed as biased against Cohen and Trump and indirectly citing as evidence the arguments that Trump has been making.
Later in the letter, Cohen’s attorneys argue that there should at least be a third party called a “special master” responsible for evaluating what is covered by attorney-client privilege. One advantage to that?
“The appointment of a Special Master will protect the integrity of the Government’s investigation from the toxic partisan politics of the day and attacks on the impartiality of the Justice Department” and the U.S. attorney’s office, it reads.
The special master is needed, they argue, because of “attacks on the impartiality of the Justice Department” — attacks that largely originated with the client of Cohen’s whom he’s most eager to defend! It’s a bit like players setting fire to the Rose Bowl and then their coaches arguing that the game should, therefore, be played at their home field instead.
Cohen’s attorneys also note that this is an unusual situation, necessitating unusual handling by the court. It’s also true that their defense is unusual and probably would not be effective coming from someone less able to drive the national conversation than their client’s client.
In this case, though, their claim is … bold. Cohen needs special treatment because there’s a perception that he can’t get a fair shake — a perception built into prominence by the client Cohen wants to protect.
Cohen’s team isn’t alone in making this case, mind you. On Friday, Trump’s attorneys similarly raised the idea that the perception of fairness was important in how this situation was handled and that questions about the investigators’ fairness existed.
If only they knew someone in a position to offset that concern.