On Monday morning in Manhattan, two French tourists stood across the street from a scrum of photographers, wondering what all the fuss was about. Fashion show? YouTube star? No, they were told, it was a hearing for the president’s personal attorney Michael Cohen, who is said to have paid money and made threats to cover up the president’s affair with the porn star Stormy Daniels, and had his office and temporary residence raided by the FBI last week.
“All politicians are unfaithful,” one of the women observed, as if to say: What’s the big deal?
Well, if you believe the U.S. attorneys prosecuting the case, it’s not really about that anymore—or about Cohen’s legal relationship with the president. “Mr. Cohen might have a legal degree, but this investigation is largely focused on his private business dealings and personal financial dealings,” assistant U.S. attorney Thomas McKay explained to Judge Kimba Wood of Federal District Court, addressing the president’s loud complaints that the raid of his lawyer’s office violated attorney-client privilege. “He has more attorneys of his own than he has clients.”
Reporters packed Wood’s courtroom on Monday to hear McKay face off against lawyers for Cohen and Trump, arguing over who should be able to lay eyes on the thousands upon thousands of documents seized from the president’s personal lawyer. Downstairs, journalists had lined up hours in advance to jockey for seats. Forced to surrender their cellphones and laptops at the entrance, per Southern District protocol, they grew testy. One of the few non-journalists seeking admission had worn her daughter’s student ID around her neck, a half-hearted prop. “I’m a citizen! I pay taxes!” she yelled as the line inched forward in fits and starts.
Upstairs, about six dozen reporters—many of whom had been called away from other assignments—wondered how to match the faces at the front of the room to the names in the newspaper. One of the key players, Trump’s lawyer Joanna Hendon, had only been appointed on Wednesday. Cohen’s lawyer Todd Harrison, meanwhile, had been told off on Friday for appearing without his client, who was later photographed smoking cigars with his boys in front of his hotel in a display of insouciance.
On Monday, Cohen arrived at the courthouse well in advance. In court, he sat forward in his chair, elbows on the table, and did not speak. His attorney, Stephen Ryan, patted his back and whispered in his ear. A team of owlish sketch artists scratched at beige pads, peering through binoculars like spectators at a horse race, trying to get a good look at the last person to enter the courtroom: Stephanie Clifford. Dressed in a lilac skirt suit and black blouse, wavy blond hair across her shoulders, Clifford sat against the wall next to her lawyer, Michael Avenatti. Neither spoke.
The hearing took place in two acts, the first of which was much, much more interesting than the second. In the first, Ryan sought to convince Wood to protect the identity of Cohen’s third client, an unnamed but “publicly prominent individual.” The client had called over the weekend, Ryan said, asking that his identity not be revealed. No one would want to be associated with such a notorious search warrant, Ryan argued.
Perhaps more importantly, Cohen’s known three-man client list included two men for whom he is alleged to have issued payouts following affairs. It’s entirely plausible that a third client might have come to Cohen for something different, just as one might come back from McDonald’s with a salad instead of a hamburger.
Cohen’s attorney argued that revealing the identity of that third client “will affect people’s willingness to consult an attorney,” a claim that drew laughter from the gallery. It certainly might affect people’s willingness to consult Michael Cohen.
Wood was not persuaded. She told him to read the client’s name or bring it to her; he read, “Sean Hannity.” The courtroom drew a collective gasp. Wide-eyed reporters turned from side to side, exchanging glances. Several journalists (correctly) made the call that this would be the most newsworthy item of the afternoon and hurried from the room.
The drama cratered from there. McKay, the government prosecutor, attempted to convince Wood to let a Southern District “taint team” determine what materials were privileged. One of the U.S. attorney’s arguments was that Cohen did not spend much time lawyering. As such, McKay said, this was a run-of-the-mill search warrant. If anything made it unusual, it wasn’t the fact that Cohen was a lawyer—it was that he was working for the president of the United States. McKay also argued that Cohen’s team wasn’t serious about making timely, fair decisions about what was privileged material. “The continued resistance to provide the court with facts and names is a sign of what’s to come,” McKay said. Give them an inch, they’ll take a mile.
“We’re good people,” Harrison countered. Wood interrupted Cohen’s attorney: “It’s not that you’re not good people. It’s that you’ve mis-cited the law at times.” That’s as close as it gets to a burn in Judge Wood’s court.
The president’s new lawyer, Joanna Hendon, did a much better job of defending Cohen than Cohen’s own attorneys did. In place of the exaggerations Cohen’s team had used to describe the search, she was straightforward about not knowing what might have been seized. And whereas Cohen’s lawyers had argued that the involvement of the president made this case unique—a tactic Wood did not appear to find convincing—Hendon (echoing McKay) clarified she was not asking for anything special or different. Her request, to have the court wait for the president to studiously review and categorize the seized documents, seemed unlikely to succeed. She was aiming high.
In the end, Wood gave Cohen’s lawyers a reprieve: She said they could do a quick review of copies of the documents and roughly determine how many might be inadmissible due to attorney-client privilege. The U.S. attorneys could do the same, but using only search terms, so as to prevent them from scrutinizing the contents too closely. Then the two sides would reconvene to discuss whether the sorting should be done by the aforementioned in-house federal “taint team,” or by a newly appointed “special master,” the option favored by Cohen’s lawyers. Wood did seem sensitive to Cohen’s argument that a special master might give Americans wary of a “witch hunt” reason to believe things were proceeding fairly.
Pace Hannity, it went about as well for Cohen’s team as they could have hoped. But it may be unlikely they get their wish. Wood was also sympathetic to McKay’s point that the delays imposed by this independent review could grossly extend the timeline. What’s more, the judge appeared to have no doubts about the ability of a Southern District taint team to impartially determine what material should not be legally passed to prosecutors. “I have faith … that their integrity is unimpeachable,” she said. Alumni of the esteemed office include both the president’s current nemesis James Comey, and as Judge Wood pointed out, Trump’s new lawyer herself.
One more thing
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