DU atty please explain what it means that Cohen gets to review first or not

[Eliot Rosewater]

as there is conflicting stories, the point that matters is since it simply sounds like "discovery" or a type of that, what matters here to me is would he be reviewing to make the argument that this doc or that should not be seen or used by the other side because of atty client privilege?

WHO decides what is and is not atty client privilege, what basis could that work in the favor of the traitor?

[manor321]

1. I could be wrong

I have no legal background.

My understanding is that Cohen's request to get back the documents from the government has been turned down. They wanted them back so then they could turn over only what they wanted to.

On the other hand, the Judge is considering whether to go forward with a government taint team or a special master. They would review the documents to determine what to hand over to government prosecutors. Note the taint team is what the government is requesting.

Also, Cohen will get a copy of the taken documents (in a rolling fashion, I believe), but I don't think that was ever in doubt.

I do not think it is accurate in any way to say that Cohen gets to see docs "first". That was denied today.

[Eliot Rosewater]

3. I dont care who sees them first, I do care if some arbiter decides something isnt

valid for the prosecution to see.

That would be too easy to fuck up.

[Stallion]

2. I'm Jumping in Late But as Litigator I Got an Idea

usually an attorney will be allowed to prepare a privilege log which describes author, recipients, date, subject matter and privilege claimed. If the attorney establishes the prima facie privilege for the document then burden shifts to Justice Department to establish why the document isn't privileged-then the Court can order that the actual contested documents be reviewed in camera (in Court by Judge) to rule on the privilege. No judge wants to wade through millions of documents when the attorneys can frame the parameters and extent of the contested documents. The judge has no idea of the legal relevance or significance of the documents she's looking at so she needs the help of the litigators to frame and guide her. This could be accomplished through a taint team and Master too.

[MaryMagdaline]

5. Explanation on Ari just now: this is a warrant not a subpoena

So ... no right to see docs and do a privilege log up front and hold back documents. Government retains possession. Government or special magistrate will get first look. Trump lawyers can see later, make objections which will be preserved in case any charges are filed.

It's a win for the government. Even special magistrate would slow things down and set a bad precedent. You don't want any more potential leaks.

On the other hand trump gets small win because his lawyers can start formulating defenses when they see the documents, start distancing trump from Cohen. Much worse to me is govt loses ability to bluff. Cohen will know what they have and what they don't have. He might not have looked through all docs in a long time.

Bad idea to appoint GM. Hope she does not go that route. Every single witness in this case and other cases will request same thing. She may do it just because he's president. Hope not.

[DemocratSinceBirth]

12. If The Feds did a no knock search on John Gotti would he get to see the seized evidence

If The Feds did a no knock search on the late John Gotti would he have got to see the seized evidence before the government does ?

[MaryMagdaline]

15. Exactly. That's why she needs to avoid bad precedent

[DemocratSinceBirth]

16. If she allows the defendant to see the seized evidence before the government

If she allows the defendant to see the seized evidence before the government no knock searches become virtually useless.

[MaryMagdaline]

21. She won't. Government sees first or GM

[DemocratSinceBirth]

22. Do you think there's inculpatory evidence on Trump ?

Maybe Trump put Cohen up to hiring that goon that tried to scare Stormy. That's a whole lot of speculation but...

[MaryMagdaline]

23. Yes. I believe they already know what they are looking for

Just a guess. Good point about trump sending goon to Stormy ... or maybe that phony lawyer who representated both Stormy and mcdougal.

[DemocratSinceBirth]

25. That lawyer was sanctioned twice

http://www.calbarjournal.com/April2011/AttorneyDiscipline/SuspensionsProbation#33


He screwed a client for $750.00, SMH

[MaryMagdaline]

26. Real gem.

[DemocratSinceBirth]

28. If I understand it correctly he got a 40% contingency in the Broidy case.

40% of 1.6 million is a lot of Benjamins.

[marybourg]

29. John Gotti was not a lawyer.

Clients of lawyers are entitled to privileged communication with their lawyer.

[DemocratSinceBirth]

30. " And no one, not even the president, can exploit the attorney-client privilege to engage in..."

But we also believe in the rule of law as an essential foundation for civil liberties and civil rights. And perhaps the first principle of the rule of law is that no one — not even the president, let alone his lawyer — is above the law. And no one, not even the president, can exploit the attorney-client privilege to engage in crime or fraud.

https://www.aclu.org/blog/executive-branch/crime-fraud-exception-michael-cohen-case

BTW, the Feds disallowed John Gotti to use Bruce Cutler, who had secured acquittals for Gotti in his first two trials. in his third trial because he might have known about criminal activity involving him.

https://www.aclu.org/blog/executive-branch/crime-fraud-exception-michael-cohen-case


Trump and his consigliere get the same justice as any other defendant, no more and no less.

[Eliot Rosewater]

6. So the "scope" of the action here could eliminate documents not direclty related to Stormy?

They could see a doc that puts Cohen or trump in a situation that might involve treason or another crime and it would not be allowed?

[Stallion]

9. No if the Document is Relevant to Crime/Fraud Exception then Justice Will Be able to Meet its Burden

this is broader than just the Stormy Daniels case

[Eliot Rosewater]

10. So if there was a document that he paid another person to be quiet about something, which is not a

crime, that would be excluded, but anything that can be argued to be related to fraud or a crime, it is in.

thanks

[Stallion]

13. Yep Sooner or Later, regardless of the method used to classify the documents, Judge is going to...

to have to eventually rule on the crime/fraud exception

[Eliot Rosewater]

14. Notice Hannity is saying "I have never been 'invoiced' by Cohen?"

So who has been paying his legal fees and why?

[More_Cowbell]

4. Usually there would be discovery

With a reputable attorney (or at least, an attorney who could viably claim to giving actual legal advice to actual clients) the government would have subpoenaed certain documents by asking for all documents that fit a certain description. Cohen would have responded by producing the ones he felt met that description, and the parties would have argued later about whether all documents were given and received.

If they want to just seize documents instead of going through the discovery process, they have to persuade a judge (magistrate, in this case) that there's a high likelihood that Cohen would destroy the documents upon receiving the subpoena.

We already know that Mueller never asks a question that he doesn't know the answer to. Although he "handed off" this part of the case, New York officials have said they've been monitoring Cohen for quite some time. I'm sure there are no surprises in what they got.

Hannity has bumbled this all the way, first denying that Cohen performed any services for him (therefore putting Cohen in legal jeopardy for claiming Hannity as a client whose documents were subject to privilege) and then saying he never paid Cohen for his services (another indication that there might not have been an attorney-client relationship) and now saying that he might have thrown "ten bucks" Cohen's way. Constant changing stories are not a sign of truthfulness.

What makes me seethe is Hannity and his friends talking about an invasion of his privacy. Tell Seth Rich's family about how much Fox News respects privacy, Hannity.

[Eliot Rosewater]

7. And so a document that might outright prove Rump is guilty of any number of crimes including

treason might not be allowed because of the scope of the litigation?

So they have to pretend they dont exist?

[Adrahil]

17. I'm a little confused by this, but I think....

the Stormy Daniels litigation does not define the scope of the warrant. As I understand it, the warrant is broader than that.

[csziggy]

31. The no knock search warrant had little to do with Stormy Daniels

Something of concern was referred to the Southern New York Attorney General (Federal) and that office obtained the search warrant. Whatever they had was sufficient to convince a judge to give them the no knock warrant to an attorney's office, something that is rarely done.

"Michael Cohen, the longtime attorney of President Trump, is under federal investigation for possible bank fraud, wire fraud and campaign finance violations, according to three people with knowledge of the case." https://www.washingtonpost.com/politics/fbi-seizes-records-related-to-stormy-daniels-in-raid-of-trump-attorney-michael-cohens-office/2018/04/09/e3e43cf4-3c30-11e8-974f-aacd97698cef_story.html?utm_term=.3addc01629d2

That is much broader than paying off a porn star, though it might include it.

[Leghorn21]

19. ...with a reputable attorney...a reputable attorney...a...a reputable attorney?

Yeah, I got nuthin HAW HAW

Thank you for your most excellent and educational post, Cowbell!! I don’t have a got damn clue wtf’s going on, and I appreciate your detailed law primer here - for real!!

[Gothmog]

11. The DOJ manual provides for a "taint team" to review

Normally a defendant does not to decide what evidence can be used against him

[spanone]

18. Per CNN: Judge orders government to turn over evidence to Cohen's legal team

A federal judge ruled prosecutors have to turn over the seized material from last Monday's raid to Michael Cohen's attorneys so they can tell the judge how much of it might be subject to attorney client privilege.

Cohen's lawyer can then share subsets of the material to Trump and the Trump Organization.

Judge Kimba Wood indicated she would rule after prosecutors and Cohen come back with an estimate of the volume of material that could be subject to attorney client privilege. She will then decide whether a government "taint team" of investigators separate from the investigation or an appointed special master would ultimately review the seized materials before prosecutors can use the evidence in the investigation.

The judge asked both sides to provide four names each as potential special masters, but made clear she has not decided that will be her final decision.

Cohen declined to comment while leaving the courtroom.

https://www.cnn.com/politics/live-news/trump-04-16-18/index.html (scroll down)

[Eliot Rosewater]

20. So they get to see what they already knew was there, it was seized from him.

As long as it all stays with the prosecution subject only to proper atty client privilege.

[spanone]

24. i've seen two articles that have a different take on this....so I'm not sure what's going on.

[Eliot Rosewater]

27. Regardless Cohen is gonna get to see what he already knows exists cuz it was in his office

The relevant issue here I assume is what will he be able to get excluded as evidence.

[struggle4progress]

32. Not an attorney, but I think the question is obviously:

exactly what materials seized should be kept from the prosecution, on the grounds that those materials are protected by attorney-client privilege

Some client-related materials from Cohen's law practice that are unrelated to the current prosecution may fall under that privilege

I'd guess much consultation with other attorneys, when Cohen was the client, will also be excludable: for if the consultations are unrelated to the current prosecution, they are probably irrelevant to the warrant, whereas if the consultations are related to the current prosecution, they may be covered by the attorney-client privilege surrounding his defense

But attorney-client privilege does not cover the planning of actual criminal activity; and this might be at issue

[Stallion]

33. You're on the Right Tract--but Attorney-Client Privilege and Relevancy/Materiality are Separate ...

objections and would be considered separately. Evidence might be not be protected by Attorney-Client privilege but it still needs to be relevant to the charges in controversy as outlined by the pleadings. Example, if Sean Hannity consulted Cohen with regard to a claim that he had been defamed as a Moronic Blowhard resembling an Huge Asshole, evidence that he was in fact a Moronic Blowhard resembling a Huge Asshole would not be subject to the Attorney-Client Privilege but still not likely to be discoverable/admissible because its not relevant to the issues framed by the pleadings. The Taint team or Master should probably filter out that type of evidence unless (giggle) the Justice Department amends its pleading to allege that Hannity has violated a criminal statute forbidding a person from being Moronic Blowhard resembling a Huge Asshole

[struggle4progress]

35. I expect Cohen can claim communications with any clients, unrelated to this prosecution,

are protected by privilege, though such communications might also be excludable for irrelevancy

Cohen also wants to claim that his communications, as client himself with other attorneys, are protected by privilege. Here I expect that such communications, unrelated to this prosecution, are indeed protected by privilege, though such communications might also be excludable for irrelevancy. This issue then remains for his communications, as client himself with other attorneys, when such communications are related to this prosecution: here I expect that such communications are protected by privilege, unless there is evidence that such communications involve advance criminal planning or deliberate efforts at criminal cover-up, which would breach the privilege

You are, of course, correct that privilege and relevancy are distinct, but this does not prevent possible overlap. More tedious is the possibility that Cohen might seek to have relevant material suppressed, on the grounds that, because it is relevant, it is somehow covered by privilege

[Demsrule86]

34. It is discovery...my take is that Cohen ET AL will get the documents but not for ten days

as always happens but what they wanted was to have the documents first and decide what the FBI and prosecutors receieved...Judge Wood...a Reagan nominee ruled against them.