U.S. District Judge Kimba Wood appointed retired federal judge Barbara S. Jones to serve in the special-master role to assess whether the documents include any confidential communications between Cohen and his legal clients, including Trump.
Jones, who served as a federal judge for 16 years in the Southern District of New York, is a former organized-crime prosecutor who was chief assistant to Robert M. Morgenthau, the longtime Manhattan district attorney.
Wood said Jones was prepared to meet with lawyers from both sides next week to work out the process. She laid out a schedule of about four weeks for the special master and Cohen’s attorneys to review the material.
Wood made clear that she does not want the review to get bogged down in legal wrangling, saying that she was prepared to intervene if there are unnecessary delays.
“If at any point it turns out that the special-master process is going too slowly, I will revisit it,” she said.
Attorneys for Cohen and Trump have been fighting to prevent prosecutors from having unfettered access to thousands of documents that were seized from Cohen earlier this month as part of an ongoing criminal investigation into the lawyer and his personal business.
In a letter to the court filed in advance of the hearing, prosecutors cited Trump’s comments early Thursday on the cable show “Fox and Friends” in which he said Cohen has performed only a “tiny, tiny little fraction” of the president’s legal work.
Prosecutors argued that Trump’s remarks proved that relatively few of the seized documents were likely to be privileged communications between the two men.
The prosecutors’ speedy incorporation of Trump’s Fox interview into legal documents provided a vivid illustration of the strategic downsides of the president’s media interviews and off-the-cuff remarks and tweets — and why lawyers urge their clients to limit public commentary about ongoing legal matters.
Prosecutors noted that Cohen’s attorneys had at first told the court that the FBI had seized “thousands, if not millions” of pages of privileged material from his home and office. Since then, however, Cohen’s attorneys have acknowledged that Cohen has had only three legal clients in the past year.
One, Fox News host Sean Hannity, has said that Cohen never represented him in any legal matter. With his new comments, Trump, too, indicated that Cohen did relatively little work for him.
“These statements by two of Cohen’s three identified clients suggested that the seized materials are unlikely to contain voluminous privileged documents, further supporting the importance of efficiency here,” prosecutors wrote.
In their filing, prosecutors withdrew their previous opposition to the appointment of a special master, provided that a third party receive the documents before Cohen and his attorneys.
Instead, Wood laid out a basic framework in which the special master and Cohen’s attorneys will receive the material about the same time, review it independently and then discuss areas of potential disagreement.
Both sides appeared to accept the choice of Jones without objection. Stephen Ryan, an attorney for Cohen, declared her “a fine choice.”
Wood had said earlier that she was considering appointing a special master — not because of legal precedent but in the interest of avoiding the appearance of bias in the politically charged case.
At the hour-long hearing, the two sides laid out a general agreement for reviewing the seized documents but also suggested there were numerous issues that could spur further fights.
Assistant U.S. Attorney Thomas McKay, for instance, asked the judge to limit the special master’s review solely to assessing material that fell under attorney- client privilege.
Allowing the special master to review anything other than the privilege issue, McKay argued, would “dramatically slow down this process.”
McKay said FBI agents had seized four phones and an iPad as part of their searches, as well as about a dozen other digital devices he did not identify. Some of those devices, such as two blackberries and one iPhone, could take longer to access, he warned.
Cohen’s attorney argued Jones should also be allowed to set aside material that is not responsive to the search warrants served this month, such as family photos or personal medical records.
Wood said they could revisit the matter if problems arose.
The legal showdown began after FBI agents seized records and documents on April 9 as part of a probe by federal prosecutors in New York into possible bank fraud and wire fraud by Cohen.
People familiar with the investigation have said prosecutors are also investigating whether Cohen violated campaign finance law by working to squelch damaging information about Trump before the November 2016 election, including with a $130,000 payment to adult-film actress Stormy Daniels, whose real name is Stephanie Clifford.
Daniels’s attorney, Michael Avenatti, sought to intervene in the New York case Thursday, a move that Wood said she would review after prosecutors had a chance to respond.
Wood said that both sides should be prepared to return to court May 25 to discuss how the document review has proceeded.
During his “Fox and Friends” interview, Trump confirmed that Cohen had been representing him when the Daniels payment was negotiated.
“He represents me with this crazy Stormy Daniels deal,” Trump said. “From what I see, he did absolutely nothing wrong.”
The comment appeared to conflict with earlier Trump comments insisting that he had been unaware of Cohen’s payment to Daniels, which could prove legally problematic. Trump’s contention that Cohen was acting on his behalf would appear to put the president in the middle of a payment now under criminal investigation.
After the hearing, Avenatti, who is also engaged in Daniels’s lawsuit against Cohen, said Trump’s on-air remarks were “disastrous” for the president’s legal strategy.
“I think the president should appear on ‘Fox and Friends’ every morning,” Avenatti said.