The Slatest

Prosecutors’ Withering Rebuttal of Cohen Shows How Hard It Will Be for Trump to Sabotage Their Investigation

Michael Cohen takes a phone call as he sits outside near the Loews Regency hotel on Park Ave on April 13, 2018 in New York City.
Michael Cohen takes a phone call as he sits outside near the Loews Regency hotel on Park Ave on April 13, 2018 in New York City.
Yana Paskova/Getty Images

A New York judge made public a government filing on Friday that offered a number of clues as to the subjects of this week’s raids on President Donald Trump’s personal attorney, Michael Cohen.

That filing—a response from the acting U.S. Attorney from the Southern District of New York to a motion by Cohen seeking a temporary restraining order to prevent the government from reviewing the material collected in the raids—makes a couple of things abundantly clear: The government has a compelling case for reviewing the material and Michael Cohen is in deep, deep trouble.

The filing confirms that “Cohen is under criminal investigation,” which led to the warrants for the FBI raids that President Trump called an “attack on our country.”

From the filing:

A federal magistrate judge found that there was probable cause to believe that Cohen’s premises and devices contained evidence, fruits and instrumentalities that specified federal crimes were committed.

Those possible crimes are redacted throughout the filing, but the document still tells us quite a bit about the investigation.

First, the search warrants “for Cohen’s residence, hotel room, office, safety deposit box, and two cell phones” involve a separate grand jury from that of Special Counsel Robert Mueller:

These searches were carried out as part of an ongoing grand jury investigation being conducted by the USAO-SDNY and the FBI.

(ABC News also reported on Friday that FBI officials seized audio “recordings” during the raid, with Cohen reportedly having been known to record phone conversations.)

This investigation is being led by SDNY Deputy U.S. Attorney Robert Khuzami, along with Assistant U.S. Attorneys Thomas McKay, Rachel Maimin, and Nicolas Roos. This fact serves to potentially inoculate the investigation of Cohen from Trump’s attacks against Mueller and potential meddling in the broader Russia investigation, even as rumors have swirled that Deputy Attorney General Rod Rosenstein is facing the axe. The filing makes explicit the fact that this probe is independent of Mueller’s:

Although Cohen accurately states that the Special Counsel’s Office (“SCO”) referred this investigation to the USAO-SDNY, the investigation has proceeded independent from the SCO’s investigation.

“This whole thing is going to make it much harder for Trump to put everything that’s happening on Mueller and Rosenstein, at least for audiences who are listening and care about the facts,” Duke University School of Law professor and former lead Enron prosecutor Samuel W. Buell told Slate. “The network of federal law enforcement professionals with experience and reputations, in different respected offices, involved in these matters makes it much harder to come up with a plausible way to surgically stop this.”

The threat of an attempt to obstruct the investigation is a particular concern given that the New York Times reported that Trump spoke with Cohen on Friday, the same day the president gave a pardon to former Vice President Dick Cheney aide Scooter Libby. “Depending on what was said, the call could be problematic for both men, as defense lawyers often advise their clients not to talk to each other during investigations,” the Times noted.

The filing also signals that the government seeks the opportunity to use a lot of information from the seized materials, offering that investigators “have reason to believe that Cohen has exceedingly few clients and a low volume of potentially privileged communications.”

The government notes that Cohen’s own legal representatives refused to say how many clients the attorney actually represents, and thus to offer any clue as to which communications might be protected by attorney-client privilege. When Judge Kimba Wood, a Ronald Reagan appointee, asked Cohen’s attorney for that information in court on Friday, the lawyer reportedly said “I need more time to really analyze that question.”

Wood set a new hearing date to decide on the merits of the temporary restraining order request and responded to Cohen’s representative: “If you don’t have the answers by 2 p.m. on Monday, I’m likely to discount the argument that there are thousands or more privileged documents.”

“Kimba Wood is extremely experienced and won’t tolerate any nonsense,” Buell told me. “The government will win this motion, which is not that legally interesting,” he added.

According to the government’s filing, Cohen is asking for an “unprecedented and [unsupported] by case law in this Circuit” ability for his own legal team to conduct a review on lawfully obtained materials to determine what might be privileged or not.

The filing also points to Cohen’s “overbroad” claims of privilege, including a letter from the Trump organization claiming:

We consider each and every communication by, between or amongst Mr. Cohen and the Trump Organization and each of its officers, directors and employees, to be subject to and protected by the attorney- client privilege and/or the work-product privilege.

The filing further notes:

[The] investigation relates in significant part to Cohen’s personal business dealings and finances. Moreover, it is neither apparent […] that Cohen, in his capacity as an attorney, has many, or any, attorney-client relationships other than with President Donald Trump …

The filing also uses Cohen’s own words and those of the president against the lawyer. It points out that Cohen has reportedly told one witness that Trump is his only client.

It also notes that any communications Cohen has had regarding the alleged hush money paid to adult film performer Stormy Daniels to keep quiet allegations of an affair with Trump might not even be privileged, as

President Trump has publicly denied knowing that Cohen paid [Daniels], and suggested to reporters that they had to “ask Michael” about the payment.

As I’ve noted repeatedly before, the repeated public insistence of Trump and White House officials that he had no knowledge of the payment to Daniels threatens to nullify the contract. Now, apparently, it also places communications Cohen had on the matter —possibly even with Trump himself—under the microscope of criminal investigators.

Further, the filing brought to light previous “covert” warrants against Cohen used to search “multiple different email accounts maintained by Cohen,” noting that a filter team reviewing those emails had found few privileged communications.

Finally, the prosecutors offered their reasons for conducting the search warrants rather than using “less intrusive means.” Specifically, they had reason to believe Cohen would not be forthcoming and that he might even destroy evidence.

The portion here is redacted as to the evidence used to make this determination, but the conclusion itself is clear:

[Redacted]. Accordingly, the nature of the USAOSDNY’s investigation and the nature of the offenses—which sound in fraud and evidence a lack of truthfulness—weighed heavily in favor of the USAO-SDNY’s decision to execute search warrants. Furthermore, in the course of its investigation, the USAO-SDNY has learned that [redacted]. As a result, absent a search warrant, these records could have been deleted without record, and without recourse for the law enforcement.

“They previously executed search warrants on Cohen email accounts and clearly found evidence of both crime and obstruction there, giving the probable cause for this week’s searches and the argument why they had to be searches not subpoenas,” Buell argues.

Ultimately, as noted, Judge Wood indicated that she would decide how the case would proceed at a hearing on Monday. The judge further ordered that Cohen be present at that hearing.

“[T]he government does not know yet what it has because it hasn’t looked at the stuff yet—could be anything from small stuff to something explosive,” Buell concludes.