We’ve seen over and over that President Trump’s strategy of speaking off the cuff was more helpful to his election than it is to his various legal fights. While his supporters took his words seriously but not always literally, courts and attorneys tend to do both. That has meant, for example, that Trump’s tweets often end up being cited in court rulings as a means of demonstrating his attitudes to particular subjects or to establish matters of fact.
Sometimes, those comments become part of the legal process on a remarkably expedited timeline, such as how Trump’s comments during an interview on Fox News’s “Fox and Friends” made its way into a legal filing by the U.S. Attorney’s Office from the Southern District of New York in less than three hours.
Trump was discussing the criminal investigation into his attorney Michael Cohen with the show’s hosts.
“This doesn’t have to do with me,” Trump said. “Michael is a businessman. He’s got a business. He also practices law. I would say probably the big thing is his business and they’re looking at something having to do with his business. I can tell you he’s a good guy.” Downplaying Cohen’s role, Trump noted that he had “so many attorneys, you wouldn’t even believe it.”
“How much of your legal work was handled by Michael Cohen?” host Steve Doocy asked.
“Well, as a percentage of my overall legal work, a tiny, tiny little fraction,” Trump replied.
That claim didn’t help Cohen.
As we’ve reported, Cohen’s legal team has been fighting in federal court to try to control how his files are reviewed to protect the confidentiality he had with his legal clients. Because he is an attorney, the search of Cohen’s home and office earlier this month necessitated a special set of precautions by FBI investigators, including additional levels of sign-off and the use of a special team to ensure that any potentially attorney-client privileged material wasn’t viewed by the team trying to build a case against Cohen.
Once all that material was seized, there would usually be a “taint team” or “filter team,” walled off from the investigatory team, which reviewed the collected documents and electronic files to weed out any that would be considered privileged — excluding documents which met the “crime-fraud exception,” meaning ones between an attorney and his client which furthered or aimed at covering up criminal activity. Cohen’s legal team, though, noting the exception nature of his client base, argued that the federal investigators should not be allowed to do that review and, in their filing requesting a restraining order on that review, wrote that “thousands, if not millions” of documents might be privileged. Given that scale, they suggested, the government would be tripping over privileged documents regularly.
In court, though, Cohen’s team’s claim quickly broke down, with Cohen’s attorney Todd Harrison backing away from the claim that there were thousands of documents between Cohen and his clients (though there might be thousands of privileged documents if you included communication between Cohen and his own attorneys). The government — worried about getting past privilege review quickly in order to gain access to the rest of the documents and bolster its criminal case against Cohen — pointed out that the number of communications with Trump himself was likely limited given that a review of Cohen’s email showed no messages with the president. What’s more, Cohen had only two other clients: a Republican fundraiser named Elliott Broidy (for whom Cohen settled a payment to a woman with whom Broidy had an affair) and Fox News’s Sean Hannity.
You probably see where this is going. Trump’s assertion that Cohen did a “tiny, tiny little fraction” of his legal work reinforced the government’s argument that very few of the documents seized from Cohen involved the president, undermining Cohen’s team’s claim that it was necessary that they do the first review of the documents to weed out privileged communications.
And so, in a filing with the court issued Thursday morning, the U.S. Attorney’s team made that point in a footnote, also pointing out that Hannity had downplayed how much work Cohen had done for him.
While it’s not immediately obvious here, Trump’s claim also includes the defense offered by his own legal team during the court fight. His attorney had argued that only Trump was positioned to review Cohen’s documents to determine what was privileged. Trump’s dismissal of how much Cohen did for him suggests that there wasn’t much for Trump to review anyway. (Judge Kimba Wood had seemed skeptical that Trump would have a lot of time to review documents, given his current position.)
It’s important to note that the rest of the filing was something of a victory for Cohen’s efforts, with the government team dropping its objection to moving the initial review to a third party “special master.” It’s also worth noting that “a tiny, tiny fraction” of an awful lot of legal work still might be a lot of work for Cohen.
But the government clearly thinks its overall argument — that there probably weren’t that many privileged documents anyway — got a boost from an unexpected source. In this case, that was both their boss’s boss’s boss, the president of the United States, and also the client of the target of their investigation. Why? Because that client is often willing to say things that don’t do him much good in legal proceedings.