Attorney-Client Privilege May Be the First Casualty of the Michael Cohen Investigation

The extraordinary attempt by Michael Cohen, the president’s longtime fixer and personal attorney, to recoup materials collected during a law enforcement raid last week failed in federal court on Monday. A federal judge ruled that, for the time being, the government would control access to the materials, while forbidding investigators to review any potential evidence.

But amid breathless coverage of a hearing that included an appearance by adult film actress Stephanie Clifford and the revelation that one of Donald Trump’s favorite Fox News personalities was on Cohen’s client list, the most important story went largely untold: The government’s power to successfully challenge attorney-client privilege depends as much on the political climate as it does on facts and law.

“I have faith in the Southern District’s U.S Attorney’s Office,” Judge Kimba Wood told the court before agreeing to let the government hold on to 10 boxes containing Cohen’s documents, files, cellphones, and the contents of his computer hard drives. “Their integrity is unimpeachable.”

Sean Hannity wasn’t the most significant name mentioned during Monday’s hearing. That honor went to Lynne Stewart, the legendary and controversial activist defense attorney who represented Omar Abdel-Rahman, the so-called Blind Sheik convicted of conspiring to commit terrorist attacks in New York City following the 1993 World Trade Center bombing. Stewart passed messages to the public on her client’s behalf, prompting a raid on her law office and her arrest.

Stewart’s case offers an object lesson in how political conditions enable attacks on attorney-client privilege. As Abdel-Rahman awaited trial in 1994, FBI agents raided the home of a paralegal on his defense team, seizing books, sermons, a dissertation, and, according to Abdel-Rahman’s attorneys, examining defense strategy documents. After the September 11 attacks, the Justice Department used the threat of future terrorism to chisel away at attorney-client privilege, modifying its policies on monitoring communications between attorneys and clients in custody. In 2002, Stewart was indicted on multiple charges, including providing material support to a terrorist group

Manhattan attorney Lynne Stewart, center, speaks to news media after leaving the U.S. Courthouse on April 9, 2002, in New York City. Stewart and three other people were indicted that day. She was later released on $500,000 bond.

The idea of Trump sorting through Cohen’s correspondence and deciding what should be shared with prosecutors prompted eye rolls and audible sighs in the courtroom. But it got to the core question of the hearing: To whom does the power to determine the scope of attorney-client privilege belong? The attorney? The client? The government?

That Trump and the Blind Sheik now share the legally novel experience of having their attorneys’ offices raided by the FBI is not a synchronism; it is a reflection of our current political conditions. As a principle, attorney-client privilege is foundational to our system of justice, no matter how unpopular the attorney or their client.

The purpose of Monday’s hearing was for Wood to hear arguments on Cohen’s application for a temporary restraining order blocking the government from accessing materials seized from his home, office, and hotel room. As a legal maneuver, it was akin to screaming into a hurricane. But, the hearing thrust into public view the power struggle to determine whether any of the material collected from Cohen is protected by attorney-client privilege. That will be decided later by a yet-to-be-determined process and, most importantly, a yet-to-be-determined party — either a “taint team” of federal prosecutors acting independently of the investigation or a special master.

During the two and half hour hearing, lawyers for Cohen and Trump appealed to law, custom, and the ugly domestic politics underlying what is arguably the most politically significant objection to the execution of a search warrant in the history of the Republic.

The government, meanwhile, did its best to portray the Cohen investigation as a routine white-collar criminal case in the Southern District of New York. But that representation was difficult to maintain when Clifford, aka Stormy Daniels, swept into the gallery accompanied by her attorney. Clifford has rocketed to fame in recent months as revelations of her affair with the president and a $130,000 payment to her facilitated by Cohen have metastasized into countless media appearances, federal and state litigation in California, and accusations of campaign finance violations. As the two took their seats among gawking reporters, their presence nudged what would normally have been dour proceedings toward the absurd.

The carnival atmosphere intensified when Cohen’s lawyers fought to withhold the name of a mysterious third client. After Cohen’s offer to provide the name under seal, a man in the second row of gallery stood up to object. He stepped to the podium and identified himself as Robert Balin, an attorney representing the New York Times and other media outlets, saying, “There’s a public access issue.”

“There’s no credible claim that this client’s name is privileged information,” Balin argued.

Cohen’s attorneys struggled to push back. “I think in the future this could affect people’s willingness to consult an attorney,” Steve Ryan said, to chuckles, the principle he was invoking clouded by the allegations surrounding his client.

Wood did something rarely seen in federal court: She ruled in favor of the press on the spot. Wood ordered that Cohen’s attorneys immediately disclose the name — aloud. The entire room held its collective breath. “The client’s name that is involved is Sean Hannity,” Ryan said hurriedly.

The familiar name was met with laughter and gasps; a few reporters bolted to the doorway, their headline in hand. Clifford, who looked bored and uncomfortable on a plastic folding chair, flashed a smile.

As satisfying as the victory may have been for the reporters gathered in the court, it was also a victory for the government and its use of investigative tools to subject individuals not charged with criminal activity to the blowback of negative publicity. Last year, the U.S. Attorney’s Office for the Southern District knocked down a lawsuit by former hedge fund manager David Ganek, whose office had also been raided by the FBI. Ganek was not charged, and an FBI agent later testified that the search warrant affidavit contained false information. As a result of the raid, Ganek’s fund shut down. His business partner was convicted, but the conviction was thrown out on appeal. Ganek unsuccessfully sued then-U.S. Attorney Preet Bharara for staging the raid on his office under a fabricated warrant to garner publicity.

While the Ganek case illustrated the devastating consequences of being caught up in a criminal investigation, it didn’t involve issues of attorney-client privilege.

“The fight to maintain attorney-client privilege has been going on in the federal courts for 30 or 40 years,” said Lefcourt. In his view, the Stewart case illustrated how the politics of the moment can embolden prosecutors to move against controversial lawyers. “Then comes 9/11; then they decide to prosecute her,” he said.

Stewart was convicted in 2005 of the material support charge, conspiracy to defraud the government, and making false statements. After a judge sentenced her to 28 months, the government appealed, arguing her sentence was too lenient. She was sentenced again; this time, she got 10 years.

She served nearly five years before prosecutors sought a compassionate release based on her terminal cancer. Stewart died at her Brooklyn home in February 2017.

One of the prosecutors on the Omar Abdel-Rahman case, Deputy U.S. Attorney Robert Khuzami, stood in the back of Wood’s courtroom yesterday. Khuzami took over leadership of the Southern District’s investigation into Cohen after the Justice Department recused administration appointee U.S. Attorney Geoffrey Berman, who had donated to the Trump campaign and advised the transition. Khuzami’s presence offered a historical link between the Cohen and Stewart cases, to which the judge alluded during the president’s attorney’s argument.

While the president’s critics may have claimed victory yesterday, a cornerstone of our judicial system — attorney-client privilege — fared less well. Lefcourt offered a law school-seminar chestnut to warn of the potential precedent that could follow from Cohen’s case: “Bad facts make bad law.”

Top photo: Michael Cohen exits the U.S. District Court for the Southern District of New York on April 16, 2018.