The Government Is Probably Going to Win on the Michael Cohen TRO Motion

April 13, 2018

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By: Sara Kropf

The government filed its opposition to Michael Cohen’s motion for a temporary restraining order today. I wrote earlier this week about the search warrant and noted that there would be a court battle coming.

Well, here it is.

Oddly, the public docket has the government’s redacted opposition but does not have a docket entry for the initial TRO motion or for any motion to intervene by President Trump. (If anyone has them, please send them my way.)

Trump would certainly have standing to intervene if it is his privileged documents at issue. There are very limited circumstances when someone has standing to challenge a search warrant (someone other than the person from whom the items were seized, that is). A client in the attorney-client relationship has standing. We’ll see more from President Trump, I’m sure.

And not just Tweets.

From the reports of the court hearing today, it appears that there will be additional filings and the judge made no rulings. But I’ve read the government’s filing, and I have a few initial takeaways:

First, as widely reported, the filing makes clear that Cohen is the target of a criminal investigation. This doesn’t mean that the FBI didn’t also seize information related to other subjects of the investigation (ahem), but the filing suggests that evidence of Cohen’s own wrongdoing was the main focus.

Also, even though the identity of the charges is redacted in the filing, Cohen himself knows what they are. The filing explains that Mr. Cohen has been provided with the affidavits to the search warrants that “identify the federal criminal charges under which Cohen is being investigated.” The investigation, according to the government, has been going on for “months.”

Second (and very interesting), the government takes the position that “the overwhelming majority of evidence seized during the searches will not be privileged material, but rather will relate to Cohen’s business dealings.” This should strike fear in Mr. Cohen. If that’s right, then the investigating team will see nearly everything from his files.

In addition, according to the government, Mr. Cohen does not have “many, or any, attorney-client relationships other than with President Donald Trump.” This is interesting because I assumed he was acting as as typical lawyer, with many clients and many matters. Seizing everything related to these other clients is a dangerous precedent, particularly if it could include cases pending before this USAO. But that doesn’t appear to be the case.

Personally, I thought the privilege issue would be a major barrier to review of these documents without a finding that the crime-fraud exception applies, but that may not be the case after all.

I would still expect a pitched battle over what is privileged and not. The government usually takes a broad view of what counts as “business dealings,” so there may be a lot more gray area than the government is admitting right now.

Third, the FBI team that conducted the search is not the investigating team. That ensures that the investigative team has not seen any potentially-privileged material. It also means that the FBI was careful to do this search completely by the book. They aren’t messing around here.

Fourth, the taint team (called the “Filter Team” in the filing) has already been set up and is ready to go. I picture a room full of agents chomping at the bit to start reviewing documents. The filing describes the Filter Team process in some detail:

To be clear, under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege holder or his/her counsel, or the court’s approval. If the Filter Team is unable to clarify a document’s category, or if there is an exception to the privilege that applies to particular material, such as the crime-fraud exception, or any waiver of the privilege – the Filter Team will (1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to whether the material is privileged; (2) bring the document to a court for resolution, including by seeking an ex parte determination if appropriate; or (3) if the document is of obviously minimal probative value, place the document into the “Privileged” category as a means of efficiently completing the review.

Fifth, the filing is on fairly solid ground in arguing that filter teams are a “common procedure” in the SDNY. In fact, they are common procedure pretty much everywhere. Cohen’s lawyers contend that they should review the documents in the first instance, not the filter team or a neutral third party. That is not common procedure anywhere I’ve seen.

Don’t get me wrong, I’d love to see more control given to parties against whom warrants have been executed, but that’s not my experience.

The government claims that Cohen’s lawyers have offered in the past “inaccurate and/or overbroad claims of privilege,” so the USAO would be “seriously prejudiced” if it could not allow a filter team to evaluate documents first.

Eh, I’m not so sure about this one. I don’t think the USAO would be “seriously prejudiced” by having Cohen’s lawyers (at McDermott Will & Emery—no slouch of a firm) do the first review. Assuming it’s done quickly, documents are produced on a rolling basis on a speedy schedule set by the court, and a hefty privilege log prepared, then it could work out just fine for the government.

In the end, though this is a solid effort by Mr. Cohen’s team (hey, I’m with ya!), but I don’t think a federal judge is going to ignore precedent saying that taint teams protect the privilege just fine.

Sixth, the filing says that the government has already been reviewing Mr. Cohen’s email from “multiple different email accounts” and has done a privilege review of them. This means that he likely used a Gmail or other web-based account, the government obtained a search warrant against Google for that email account (without Mr. Cohen’s knowledge) and has already done a privilege review of those emails.

That’s a bit of a bombshell. Who knows what was in those accounts?

Seventh, government redacts the section in which it justifies the use of a search warrant rather than a subpoena but does leave a few bread crumbs. We know only that the “nature of the USAO-SDNY’s investigation and nature of the offenses—which sound in fraud and evidence a lack of truthfulness—weighed heavily in favor of” the warrants. And it goes on to say that

As a result, absent a search warrant, these records could have been deleted without record, and without recourse for the law enforcement.

“Could have been deleted” sounds like the government may have evidence that records were being deleted or at least there was a strong possibility of it.

Finally, the government opposes the appointment of a special master. The reasons the government gives are not all that strong. They say there could be “significant delay.” But that could be overcome by appointing someone who could devote immediate resources to the matter. And it would be unusual in a typical criminal case to appoint a special master.

But this is no typical case. I wouldn’t be surprised if the judge at least considered (and then rejected) this possibility.

All in all, I think the government will win this battle. It knew this fight was coming and clearly planned this warrant process to fight it well.

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