A New York federal judge said she would consider having a neutral third party decide which documents the FBI seized from President Trump’s personal lawyer should be protected by attorney-client privilege.
District Judge Kimba Wood surprised some court-watchers even by saying she was open to that possibility in the dispute between the Justice Department and Michael Cohen, but ended the Monday afternoon hearing without deciding.
That possibility was overshadowed though by the disclosure that Fox News host Sean Hannity was the third of the three clients whose communications Mr. Cohen wanted to shield by asserting attorney-client privilege.
The government contends the documents and other records confiscated by the FBI are critical to its investigation into whether Mr. Cohen suppressed negative media coverage of Mr. Trump before the 2016 presidential election.
Todd Harrison, an attorney representing Mr. Cohen, asked for a temporary restraining order to block the government from reviewing financial records, emails and other documents seized in FBI raids last week on Mr. Cohen’s office, home and hotel.
Authorities have said some of the documents are related to a $130,000 Mr. Cohen made to Stephanie Clifford, the adult film actress better known as Stormy Daniels. Ms. Clifford said she had an affair with Mr. Trump in 2006.
The search warrant executed by the FBI also sought documents related to possible campaign finance violations, bank fraud and wire fraud.
Deputy Attorney General Rod Rosenstein was said to have signed off on the warrant, which was based on a referral by special counsel Robert Mueller. The referral reportedly was related to information Mr. Mueller uncovered probing Russian collusion with the Trump campaign, but was not directly tied to that investigation.
Mr. Cohen’s lawyers said in court filings the raid was “completely unprecedented” and asked Judge Wood to let their lawyers review the documents or appoint a neutral third party to determine which documents should be protected by attorney-client privilege.
“This is perhaps the most highly publicized search warrant in the history of recent American criminal jurisprudence,” Mr. Harrison wrote. “It is paramount that the review of Mr. Cohen’s data and documents be handled in such a way as to eliminate as much as possible, even the ’appearance of unfairness.’”
Also, lawyers for Mr. Trump asked for copies of seized records to be turned over to the president so he can review them for confidential information.
Prosecutors fired back in their own filings that appointing a third party would “mark a serious departure from the accepted normal practices of this district.”
The government said it has a so-called “filter team” of lawyers unaffiliated with the case available to review communications between Mr. Cohen and his clients for attorney-client privilege.
Judge Wood said she trusts prosecutors to review the material, but she would mull the idea of a separate review. She did not say when she will issue a decision.
Mr. Harrison asserted in court documents that attorney-client privilege should protect those documents, noting that Mr. Cohen had three high-profile clients.
The clients were initially identified as Mr. Trump, former Republican National Committee deputy finance chair Elliott Broidy, but Mr. Harrison tried to avoid naming the third client.
Judge Wood pressured Mr. Harrison to reveal Mr. Hannity as the client.
On his afternoon radio show, Mr. Hannity questioned how his link to Mr. Cohen had become “such a big deal,” adding that he never paid Mr. Cohen or used him as a lawyer “in the traditional sense.”
Nevertheless, he maintains that those conversations are still protected by attorney-client privilege.
“I’ve known Michael for a long time and let me be very clear to the media, Michael never represented me in any matter. I never retained him in the traditional sense. I never got an invoice.”
Mr. Hannity said that none of the matters for which he sought Mr. Cohen’s advice involved lawsuits or payoffs.
“I have eight attorneys for various things and I like to have people I like run questions by,” he continued. “Michael would give me his time.”
Prosecutors said last week in court filings they had been investigating Mr. Cohen for “criminal conduct that largely centers on his personal and business dealings.”
Mr. Cohen has also been linked to a $1.6 million payment to a former Playboy model who alleged she had become pregnant from an affair with Mr. Broidy, who resigned Friday from the RNC.
Although he did not say whether he fathered a child, Mr. Broidy did admit to a relationship. He said that the woman was represented by Keith Davidson, an attorney who is also representing Ms. Clifford.
Ms. Clifford attended the Monday hearing and upon her exit made brief comments blasting Mr. Cohen.
“For years, Mr. Cohen has acted like he is above the law,” she said. “He has considered himself and openly referred to himself as Mr. Trump’s fixer. He’s played by a different set of rules — or should we say no rules at all.”
“He has never thought that the little man, or especially women — and even more, women like me — mattered,” she continued. “That ends now.”
⦁ This article is based in part on wire service reports.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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