Good morning from New York.
Expected in Manhattan Federal Court today:
* @MichaelCohen212
* @StormyDaniels, with her attorney @MichaelAvenatti
* @realDonaldTrump’s legal team
* @SDNYNews prosecutors
Preview + live-tweet to come. What happened Friday: courthousenews.com/trumps-attorne…
Expected in Manhattan Federal Court today:
* @MichaelCohen212
* @StormyDaniels, with her attorney @MichaelAvenatti
* @realDonaldTrump’s legal team
* @SDNYNews prosecutors
Preview + live-tweet to come. What happened Friday: courthousenews.com/trumps-attorne…
Today's hearing is so extraordinary that what on any other day would be a major story in the same courthouse is second-tier news:
Jury selection began roughly two hours ago in the retrial of a corruption case against ex-NY Assembly leader Sheldon Silver. courthousenews.com/sheldon-silver…
Jury selection began roughly two hours ago in the retrial of a corruption case against ex-NY Assembly leader Sheldon Silver. courthousenews.com/sheldon-silver…
I will be tracking developments in both cases as best as I can as the news day unfolds.
Commentary on the case from the weekend:
1) A reporter reflecting upon his Iraq war correspondence and the 2008 financial crisis argues in the New Yorker that the Cohen investigation marks "The End Stage of the Trump Presidency"
1) A reporter reflecting upon his Iraq war correspondence and the 2008 financial crisis argues in the New Yorker that the Cohen investigation marks "The End Stage of the Trump Presidency"
2) The Washington Post's Margaret Sullivan believes that Trump may survive it because of how it will be refracted through Sean Hannity and others. washingtonpost.com/lifestyle/styl…
Breaking: Cohen's attorneys file letter with the court citing "growing public debate about whether criminal and congressional investigations by the government are being undertaken impartially."
Here's the letter: documentcloud.org/documents/4438…
Here's the letter: documentcloud.org/documents/4438…
This line by Cohen's attorneys is incredible:
Cohen argues that "the appointment of a Special Master" will shield against "toxic partisan politics of the day" and "attacks on the impartiality of the Justice Department and the USAO."
Who's been making those attacks, I wonder?
Cohen argues that "the appointment of a Special Master" will shield against "toxic partisan politics of the day" and "attacks on the impartiality of the Justice Department and the USAO."
Who's been making those attacks, I wonder?
Important find from the new brief.
New revelations emerging by the moment, but in the meanwhile, catch up with the current state of play for today's hearing in my preview article.
courthousenews.com/trump-team-dem…
courthousenews.com/trump-team-dem…
For those asking "What's the deal with special masters," a jargon explanation:
"Special master" is a court-appointed third party -- usually an attorney -- who would be called upon here to navigate attorney-client privilege matters.
"Special master" is a court-appointed third party -- usually an attorney -- who would be called upon here to navigate attorney-client privilege matters.
Just in time for today's hearing.
Just In: The government's new brief slams Trump and Cohen's attorneys for trying to "erect an unprecedented and unwarranted obstacle to the government’s ability to investigate attorneys for their own conduct, in this case or any other."
The brief: documentcloud.org/documents/4438…
The brief: documentcloud.org/documents/4438…
Whoops!
Cohen's attorneys correct their original brief, which initially described their mystery client's legal matters as "responsive" the search warrant.
Their corrected brief says, "not responsive."
Nice catch by @JRiley8832.
Cohen's attorneys correct their original brief, which initially described their mystery client's legal matters as "responsive" the search warrant.
Their corrected brief says, "not responsive."
Nice catch by @JRiley8832.
Michael Cohen has entered the building, my @CourthouseNews colleague @FRIED_ALIVE informs me.
Meanwhile, on the Western front of the litigation (California).
He's in New York today, however...
He's in New York today, however...
Where is @MichaelAvenatti's client?
Asking for dozens of photographers and reporters barricaded in press pens in front of the courtroom for a hearing that's starting in eight minutes.
Asking for dozens of photographers and reporters barricaded in press pens in front of the courtroom for a hearing that's starting in eight minutes.
Hearing reports Stormy just entered through the side entrance.
Stormy has entered the courtroom in a lavender suit, per my colleague @FRIED_ALIVE.
Pink or lavender, opinions vary.
Judge for yourself.
Judge for yourself.
Judge Kimba Wood, however, has not yet entered the courtroom.
The bench remains empty, as the attorneys wait for the hearing to begin.
The bench remains empty, as the attorneys wait for the hearing to begin.
"All rise!"
Judge Wood just took the stand.
The attorneys introduce themselves.
Judge Wood just took the stand.
The attorneys introduce themselves.
* The bench.
Judge: Do you know roughly the volume of privileged documents that were seized?
Cohen's attorney Todd Harrison: No, judge, we don't... We don't recognize all of the items that the government seized.
Judge: Do you know roughly the volume of privileged documents that were seized?
Cohen's attorney Todd Harrison: No, judge, we don't... We don't recognize all of the items that the government seized.
Judge Wood asks AUSA McKay to estimate the number of privileged documents.
McKay: "No. In fact, because of the pendancy of this motion," it's difficult to talk to privilege team.
McKay: "No. In fact, because of the pendancy of this motion," it's difficult to talk to privilege team.
AUSA McKay: Cohen has more attorneys than he has clients.
McKay estimates that there are up to 10 "physical boxes" of documents, but the "real volume" will come from the electronic files.
McKay: Cohen "does not state whether he has retained any material from the Trump Organization when he left over one year ago."
"The silence from the Trump Organization is telling," he adds later.
"The silence from the Trump Organization is telling," he adds later.
"Mr. Cohen may have a legal degree," McKay allows, but adds this search is about his private business dealings.
This is "far from" the Lynne Stewart case, he continues.
More on that case here. courthousenews.com/trump-team-dem…
This is "far from" the Lynne Stewart case, he continues.
More on that case here. courthousenews.com/trump-team-dem…
McKay noted that Cohen refused to disclose the third client's name under seal.
"If he can't disclose the client name, even to the court under seal..." McKay asks how the government can contest an overbroad claim of privilege.
"If he can't disclose the client name, even to the court under seal..." McKay asks how the government can contest an overbroad claim of privilege.
"There's nothing improper about the way the search warrants were executed in this case," McKay says, slamming Cohen's Fourth Amendment claim as "frivolous."
Quoting this line from Cohen's letter about "attacks on the impartiality of the Justice Department and the USAO," McKay notes the irony that I pointed out early.
Cohen and Trump both made "inflammatory" attacks on that search, McKay said.
Cohen and Trump both made "inflammatory" attacks on that search, McKay said.
Cohen's other attorney Steve Ryan says the third client is a "publicly prominent individual," and he didn't want the name to be released from the public.
"We are protecting that persons identity, but not from the court," he claims, if there will be a sealed in camera review.
Jargon explanation: In camera = for the judge's eyes alone.
Jargon explanation: In camera = for the judge's eyes alone.
Judge Wood wants to know the "legal grounds" for withholding the client's name.
After commenting on Cohen's responsibilities, Ryan says: "I'm simply trying to protect the privacy of that individual."
An attorney for the press objects, notes that the public also has a right.
After commenting on Cohen's responsibilities, Ryan says: "I'm simply trying to protect the privacy of that individual."
An attorney for the press objects, notes that the public also has a right.
That attorney's name is Robert Balin, who reads a citation indicating that a client's fear of guilt by association is not enough to prevent disclosure.
The reason this is so, Balin says, is, "So that We the People, and the press, can monitor our institutions."
The reason this is so, Balin says, is, "So that We the People, and the press, can monitor our institutions."
Balin's citation sounds like Vignelli, but I'll track it down with the transcript later.
Crowd-source request: Does that ring a bell to any attorneys?
Crowd-source request: Does that ring a bell to any attorneys?
BREAKING: Judge Wood rules that the name "must be disclosed publicly now."
Dramatic buildup here.
As noted, Judge Wood made her ruling on disclosure, but no name yet. They're arguing about a privilege log.
Todd Harrison is up now.
As noted, Judge Wood made her ruling on disclosure, but no name yet. They're arguing about a privilege log.
Todd Harrison is up now.
Judge Wood: "I understand that he doesn't want his name out there, but that's not enough under the law."
"The client's name is Sean Hannity"
Harrison: Mr. McKay makes a good point about the fact that we can conceivably limit this search by time and subject.
"My guess is that this could be done in relatively short order," he said.
He claims it would be easier than Lynne Stewart case, which took 15 months.
"My guess is that this could be done in relatively short order," he said.
He claims it would be easier than Lynne Stewart case, which took 15 months.
Judge Wood sounds skeptical, noting that case involved fewer files.
Harrison doubles down on claim that there are "thousands" of privileged documents, a number that he struggled to corroborate on Friday.
Wood challenged him on it back then.
Harrison doubles down on claim that there are "thousands" of privileged documents, a number that he struggled to corroborate on Friday.
Wood challenged him on it back then.
"The American public is watching this," Harrison says, adding that the public does not "feel comfortable" with what's unfolding.
"I think that America, frankly, is looking to the court as the third co-equal branch of gov't..." to provide the appearance of fairness.
"I think that America, frankly, is looking to the court as the third co-equal branch of gov't..." to provide the appearance of fairness.
McKay: "Your honor, where to begin, this isn't a battle between the different branches of government."
"Everyone is watching this case, that may be true," but that's why the court should follow the usual procedures, McKay says.
"Everyone is watching this case, that may be true," but that's why the court should follow the usual procedures, McKay says.
McKay: Cohen said that there were "thousands, if not millions of privileged documents," but there were actually three clients.
"The motion should be denied because the factual premise for it is faulty," he says.
"The motion should be denied because the factual premise for it is faulty," he says.
McKay: Cohen's emails used to say special counsel to the Trump Organization and then said personal attorney to the President.
Those might fall under the sweeping rubric of ones that "relate" to Trump "in any way."
Those might fall under the sweeping rubric of ones that "relate" to Trump "in any way."
McKay predicts wide over-breadth in privilege assertions if the court orders a special master (i.e. neutral third party) to handle the matter.
"They are going to start by bidding high in the amount of privileged material," the prosecutor said.
Art of the deal?
"They are going to start by bidding high in the amount of privileged material," the prosecutor said.
Art of the deal?
Cohen's other attorney, Ryan: "Candidly, I think the Russia case is a complete dry hole."
Ryan represents Cohen in the Russia probe.
Ryan represents Cohen in the Russia probe.
McKay said that Ryan has "not cited any authority" why Trump's attorney-client privilege matters more than any other person's.
"Their privilege is no different form the President of the United States' privilege," he said.
"Their privilege is no different form the President of the United States' privilege," he said.
Trump's attorney Joanna Hendon is up now.
Hendon agrees that attorney-client privilege does not include every message with the word "Trump" in it.
Prosecutors expressed that fear earlier.
Prosecutors expressed that fear earlier.
(Reminder: Cohen boasted about his Trump ties in his signature line, McKay said earlier.)
Hendon: "Nothing less than the fair and just operation of our legal system... depends upon this privilege."
Hendon: "I agree with Mr. McKay. We're not asking for anything special or different in this case. I am asking for the president to have access to this sacred privilege," for cases as mundane as dog bite cases and slip-and-falls.
Hendon responds to government's suggestion that Cohen is "not a real lawyer."
"That may be right, that may be wrong," she says, but adds someone who "holds these views and expresses them publicly cannot be counted upon" to vindicate attorney-client privilege.
"That may be right, that may be wrong," she says, but adds someone who "holds these views and expresses them publicly cannot be counted upon" to vindicate attorney-client privilege.
Hendon: The president should make his privilege determinations in the manner that I've decided, [correcting] that I've described.
There's been a lot of talk about the Lynne Stewart case, but Hendon distinguishes her process from that case.
Instead of a special master, Hendon proposes Cohen and Trump's legal teams assert privilege for review and take it to the gov't. If gov't objects, it goes to Wood.
Instead of a special master, Hendon proposes Cohen and Trump's legal teams assert privilege for review and take it to the gov't. If gov't objects, it goes to Wood.
Hendon claims that would protect Trump's privilege while being more efficient than the Stewart process, which, again, took roughly 15 months to complete.
McKay's back up now.
McKay's back up now.
McKay says that the filter team, sometimes described as the taint team, would consult with Trump's attorneys in either event.
"Where Mr. Cohen is clearly under criminal investigation, he is going to have even more incentive" to "drag things down" with assertions of privilege.
"Where Mr. Cohen is clearly under criminal investigation, he is going to have even more incentive" to "drag things down" with assertions of privilege.
McKay on Trump: "He's a busy man."
"Defense counsel is not going to agree with privilege determinations without consulting with her client," he notes.
It's more efficient, he argues, for USAO to give him potentially privileged documents for him to review than vice versa.
"Defense counsel is not going to agree with privilege determinations without consulting with her client," he notes.
It's more efficient, he argues, for USAO to give him potentially privileged documents for him to review than vice versa.
Trump's attorney's back up.
Meanwhile, outside the court:
Meanwhile, outside the court:
Hendon says that the government may fail at even good-faith efforts to identify privileged material since "A taint team is even further removed."
"Privileged material may not be recognized as such," she adds later.
Judge Wood calls her premise wrong, as gov't will talk w/ her.
"Privileged material may not be recognized as such," she adds later.
Judge Wood calls her premise wrong, as gov't will talk w/ her.
Wood: "You're getting into areas that we don't need to deal with now."
She wants to know how to get the matter to the "next step" and "get it underway."
McKay back up to comment on that.
She wants to know how to get the matter to the "next step" and "get it underway."
McKay back up to comment on that.
McKay argues that Cohen's awareness of his own files undercuts the argument from Team Trump.
"Cohen is sitting at the table and is zealously asserting his client's interest."
And...
"The premise that Mr. Cohen can't successfully navigate his client's files rings hollow."
"Cohen is sitting at the table and is zealously asserting his client's interest."
And...
"The premise that Mr. Cohen can't successfully navigate his client's files rings hollow."
McKay: "My understanding is that most of the electronic devices were imaged onsite," allowing Trump and Cohen to review and make privilege assertions.
Hendon, Trump's attorney, responds to McKay's comments about what happens in every other case.
"This is a case of first impression for this court," she claims.
"This is a case of first impression for this court," she claims.
Cohen's attorney Todd Harrison: "The balance of the equities should be with the American citizen whose stuff was taken."
McKay counters that the American citizen whose stuff was taken was someone whom a magistrate judge found evidence of crimes.
McKay counters that the American citizen whose stuff was taken was someone whom a magistrate judge found evidence of crimes.
Judge Wood: "I have faith in the Southern District U.S. Attorney's Office."
"Their integrity is unimpeachable, and so I think a taint team is a viable option."
But in terms of "perception of fairness," a special master "might have a role here," if a more limited one.
"Their integrity is unimpeachable, and so I think a taint team is a viable option."
But in terms of "perception of fairness," a special master "might have a role here," if a more limited one.
Wood warns: "I would want opposing counsel to move very fast."
"If" there is a special master, she adds.
She solicited proposals on how to move fast.
"I'm denying the motion for a TRO because it's currently moot," she said.
The gov't isn't accessing the material now anyway
"If" there is a special master, she adds.
She solicited proposals on how to move fast.
"I'm denying the motion for a TRO because it's currently moot," she said.
The gov't isn't accessing the material now anyway
Hendon: So your honor has denied the TRO, but not the preliminary injunction.
Wood: Right.
Wood: Right.
Jargon explanation: TRO= temporary restraining order.
Preliminary injunction has not yet been ruled on.
Preliminary injunction has not yet been ruled on.
The parties will propose suggestions for a special master, but Wood said that she has not decided whether to appoint one.
Adjourned. No @MichaelAvenatti. At least not inside the court.
Unclear when the next court date is, but we'll learn more about how this process might unfold with a new document the docket on Wednesday.
Details to come.
Look out for my story soon. Here's a bare-bones DEVELOPING one for now: courthousenews.com/trump-team-dem…
Details to come.
Look out for my story soon. Here's a bare-bones DEVELOPING one for now: courthousenews.com/trump-team-dem…
Bonus tweet for Cohen case development:
You can read about it. You can be told about it, but you can only hear it in court.
CNN asked the court to make audio recordings of hearings, and release them to the public.
Denied, Judge Wood ruled today, citing a longstanding order.
You can read about it. You can be told about it, but you can only hear it in court.
CNN asked the court to make audio recordings of hearings, and release them to the public.
Denied, Judge Wood ruled today, citing a longstanding order.
