Court hearing continues today on the search warrant to Trump lawyer Michael Cohen By Robert Willmann


Now underway in a federal district court in Manhattan, New York City, is the continuation of a hearing started last Friday, 13 April 2018, on a request by president Trump's lawyer Michael Cohen and by a lawyer for Trump for a restraining order and injunction to prevent the FBI and U.S. Department of Justice from looking at material seized from Cohen under a search warrant executed on his office, home, and hotel room on 9 April 2018, until it is examined first by an outside lawyer (a "special master") appointed by the court.

There are actually three main issues in this drama.  1)  The scope of the search itself, since there are not supposed to be "general search warrants" in the U.S.A., through which the government can come in and fish around and rummage through everything to see what they can find.  2)  What material and information is protected by the attorney-client privilege, which includes the issue of whether any attorney-client information is not protected by the privilege because it falls within the "crime-fraud" exception to attorney-client communications.  3)  Whether the names of Cohen's clients can be made public.

What makes this situation significant is that it comes out of the execution of a search warrant in a raid of a lawyer's material and office done by government agents claiming that there is some cause that a crime has been committed and they expect that evidence of the crime (or crimes) is at the location that is being searched.  Since they come in without consent, they get stuff and you cannot get it checked and filtered through a court first.  Then, the federal Justice Department and FBI say they have a "taint team" of their own people who will go through all the items seized and decide if any of them are privileged communications between you and your attorney, or are otherwise covered by the privilege, and that this team will not include any of the investigators looking into a possible criminal case against you.  This is also known as, "the fox guarding the hen house".


Several years ago I was involved in a case with the same issue of a claimed crime-fraud exception to the attorney-client privilege in which I was representing one of three lawyers sued by a former spouse on the other side of a child custody dispute.  If this sounds odd, it was and is.  The other party of course claimed every possible violation in the book to say that the three experienced family law attorneys had conspired with her former spouse and that she should see all of their attorney-client communications under the crime-fraud exception.  However, the procedure was easy because it was a civil case and we filed objections to their requests and had a court hearing through which the judge decided what could be disclosed.  The defense of the case was ultimately successful.  However, Trump and Cohen are caught up in the different world of criminal procedure and the unilateral search warrant.

Here are two documents that can provide an initial idea of what is going on.  The first is a letter filed early today with the court clerk by Cohen's lawyers mainly about the attorney-client privilege and the names of clients–

The second document was filed by the U.S. Attorney's Office for the Southern District of New York (Manhattan) last Friday, 13 April, in response to Cohen's request for a restraining order–

There will certainly be media reports about the court hearing, and Cohen was directed to appear today.

As a little sidelight, the federal judge presiding over this hearing is Kimba Wood, who was appointed by president Bill Clinton back in 1993 to be the Attorney General of the United States.  However, it was discovered that she had an illegal immigrant working for her as a baby sitter (when it was technically legal to do so) and so her name was withdrawn.  This resulted in someone named Janet Reno being appointed as attorney general, and the rest is history– 

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