President Trump asked a federal judge Sunday night to allow him to review documents that FBI agents seized from the office of his longtime lawyer before criminal investigators have a chance to see the material.
The request underscores the high stakes in an ongoing legal fight in federal court in New York, where Michael Cohen, Trump’s lawyer, is also fighting to get a chance to review material seized as part of a criminal investigation of his business dealings.
Trump’s request, in the form of a letter from other lawyers representing him, could further complicate a hearing set for Monday afternoon. During that session, lawyers for Cohen are expected to tell the judge overseeing the case how many legal clients he has and how many seized documents he thinks might be covered by attorney-client privilege.
Cohen is set to attend the hearing. Also expected to be on hand is adult-film star Stormy Daniels, whom Cohen secretly paid $130,000 in 2016 to keep quiet the details of an alleged sexual liaison she had with Trump.
Prosecutors indicated in court filings Friday that Cohen has been under criminal investigation for months by the U.S. attorney in Manhattan and that a grand jury has been hearing evidence in the case.
Last week’s raid of Cohen’s office and residences infuriated the president, who argued on Twitter that attorney-client privilege “is dead.” Prosecutors have defended the search in part by saying that the investigation has shown that Cohen does not do much legal work and does not appear to have many clients.
Cohen, through his lawyers, has argued that the government’s policies to protect information covered by the attorney-client privilege are not enough, and that his own lawyers should be allowed to review the seized material before investigators do.
In a letter to U.S. District Judge Kimba Wood on Sunday night, other lawyers working on Trump’s behalf argue that the president should have a chance to review the material ahead of investigators.
The eight-page letter written by Trump’s lawyer, Joanna Hendon, accuses the Justice Department of acting in “an aggressive, intrusive, and unorthodox manner” in an attempt to “eliminate the president’s right to a full assertion of every privilege argument available to him.”
The FBI executed search warrants last week on Cohen’s office, home, security deposit box and hotel room. It is unusual, but not unprecedented, for agents to search a lawyer’s records, and there is a policy in place designed to shield information covered by the attorney-client privilege.
That procedure involves having a “taint team” of prosecutors outside the investigation review all the material and separate what is covered by the privilege. A lawyer’s communications with a client are not covered by the privilege if those discussions do not involve legal advice, or were used to further a crime or fraud.
Under the procedure, the taint team would turn over to the case investigators all the material that is relevant and not covered by attorney-client privilege.
“The president objects to the government’s proposal to use a ‘taint team’ of prosecutors from the very office that is investigating this matter to conduct the initial privilege review of documents seized from the President’s personal attorney, Michael Cohen,’’ Hendon’s letter said.
She added that “the president respectfully requests” that the judge issue an order barring the taint team from conducting an initial review of the seized material and require the government to turn over a copy of that material to Cohen’s lawyers.
Then, the president wants the court to direct Cohen “to identify to the president all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel,” according to the letter. Any disputes about what material was or wasn’t covered by the attorney-client privilege would then be decided by a judge, under the president’s proposal.
People familiar with the Cohen investigation have said he is being investigated for possible bank and wire fraud. Prosecutors are examining whether crimes were committed as part of any pattern or strategy of trying to buy the silence of people who could offer accounts that could have damaged Trump’s candidacy in 2016.
In addition, the FBI is also looking into whether any fraud was committed in connection with Cohen’s ownership of taxi medallions — assets whose value has plummeted in recent years.