A week of Donald Trump screeching about attorney-client privilege has manifested itself into a bonafide legal strategy.
On Sunday night, Trump’s lawyer, Joanna Hendon, argued to U.S. District Court Judge Kimba Wood that the only way to ensure that Trump’s attorney-client privilege is protected when it comes to his other lawyer, Michael Cohen, is to let him view Cohen-related files before federal investigators do.
“It simply cannot be the case that by acting in such an aggressive, intrusive, and unorthodox manner,” she wrote, “the government has somehow created an entitlement on its own part 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.
Hendon isn’t happy with this whole arrangement, however. “In the highly politicized, even fevered, atmosphere that envelops this matter,” she wrote, “it is simply unreasonable to expect that a team of prosecutors, even if not directly involved in the investigation of Mr. Cohen, could perform a privilege review in the manner necessary to safeguard the important interests of the President, as the holder of the privilege.”
Trump’s lawyers asked the court to provide Cohen with a “copy of the materials,” to make Cohen identify any of those materials involving Trump, and to allow Trump and his lawyers “to identify for the government’s taint team all materials over which the President asserts privilege.”
“Fairness and justice - as well as the appearance of fairness and justice - require that,” Hendon wrote, “the seized materials relating to the President must be reviewed by the only person who is truly motivated to ensure that the privilege is properly invoked and applied: the privilege-holder himself, the President.” Trump: a one-man taint team, AKA Big Taint.
Wood set a deadline of 10 AM Monday for Cohen to name the clients possibly affected by the seizure. It’s unclear what this means for Cohen’s other clients, and whether or not they should get the same privilege as Trump of making sure nothing bad about them is in the files, or how the judge will rule on the request. Politico noted that on Friday, Wood “seemed to chide” Hendon for making the argument that Trump should get special attorney-client privileges that normal clients don’t receive.
Cohen has a hearing set for 2 PM today. The Post says that Cohen will be in attendance, as will Stormy Daniels.