By Brooke Singman –FoxNews.com
Attorneys for Trump lawyer Michael Cohen, in their latest court filing, blasted the FBI for its “unprecedented” raid on his properties last week and claimed the feds seized items that “have nothing to do with the probable cause” on which the warrant was granted.
Cohen, President Trump’s longtime personal attorney who formerly worked at the Trump Organization, is under criminal investigation as part of a grand jury probe into his personal conduct and business dealings.
Cohen’s attorneys – Stephen Ryan and Todd Harrison – penned a letter to federal Judge Kimba Wood of the Southern District of New York early Monday ahead of a high-profile hearing later in the day. They are urging to court to appoint an official to review what materials are protected by attorney-client privilege.
“[T]here is a growing public debate about whether criminal and congressional investigations by the government are being undertaken impartially, free of any political bias or partisan motivation. It is in this climate that the Government executed an unprecedented search warrant—instead of using its less onerous subpoena power—upon the personal attorney of the President of the United States,” Cohen’s attorneys wrote.
“In the process, the Government seized more than a dozen electronic devices and other items that include documents and data regarding topics and issues that have nothing to do with the probable cause upon which the search warrant was granted in the first place.”
Cohen’s apartment, office, hotel room and safety deposit box were raided on April 9—a move that, according to U.S. Attorney Robert S. Khuzami of USAO-SDNY, was approved by a federal magistrate judge.
“These searches were carried out as part of an ongoing grand jury investigation being conducted by the USAO-SDNY and the FBI,” Khuzami’s motion filed Friday read. The order goes on to explain in a footnote that while Special Counsel Robert Mueller did, in fact, refer the investigation into Cohen, the USAO-SDNY is proceeding with the investigation “independent” of Mueller’s team.
Special Counsel Robert Mueller referred an investigation of Michael Cohen to the U.S. Attorneys Office in the Southern District of New York. (AP)
Khuzami stated that the judge “had found probable cause to believe that the premises and devices searched contained evidence, fruits, and instrumentalities of conduct for which Cohen is under criminal investigation.”
The filing from Cohen’s attorneys Monday comes before the hearing slated for 2 p.m. in New York City. Adult film star Stormy Daniels, whom Cohen paid $130,000, allegedly for her silence about an affair with Trump, is slated to attend the hearing.
Cohen’s attorneys underscored the “unprecedented” nature of seizing data and files of the personal attorney to the president of the United States.
“This is completely unprecedented. Prior to the execution of warrants at issue, prosecutors from the Southern District of New York had already intercepted emails from the president’s personal lawyer,” the attorneys wrote. “They apparently executed the search warrants at issue here only after they searched the private emails between the President of the United States and his personal lawyer and realized that ‘zero emails were exchanged with President Trump’.”
At issue is the topic of attorney-client privilege, which the president has claimed in recent days is “dead.”
Harvard Law Professor Alan Dershowitz, in an op-ed last week, noted the importance of honoring the attorney-client privilege, and the idea that that privilege should prevent federal investigators from even seizing those communications.
“Civil libertarians should be concerned whenever the government interferes with the lawyer-client relationship. Clients should be able to rely on confidentiality when they disclose their most intimate secrets in an effort to secure their legal rights,” Dershowitz wrote in an opinion column for The Hill. “A highly publicized raid on the president’s lawyer will surely shake the confidence of many clients in promises of confidentiality by their lawyers.”
Cohen’s attorneys also noted that federal investigators seized records, not only relating to Trump-Cohen client-attorney privilege, but also former RNC Deputy Finance Chair Elliot Broidy, who resigned last week after the revelations of an alleged sex scandal settlement arranged by Cohen.
“A special master should be appointed in the interest of the administration of justice to ensure that the Government does not have access to materials for which they have not yet shown would be obtained through a valid search warrant through a showing of probable cause,” Cohen’s attorneys wrote.
The U.S. attorney’s office, though, argued that the court should permit them to “review the evidence lawfully seized” as is “common practice” in the district. “Our prior brief explained that the investigation relates in large part to conduct by Cohen in his personal business and financial dealings, which have nothing to do with any legal practice he may have,” Khuzami wrote, arguing against the request for a special master to review the files.
Cohen’s attorney motion comes just hours after Trump’s lawyer Joanna Hendon wrote a letter to the court requesting the federal government throw out evidence seized in the raid last week.
“The President objects to the government’s proposal to use a ‘taint team’ of prosecutors from the very Office that is investigating this matter to conduct the initial privilege review of documents seized from the President’s personal attorney, Michael D. Cohen,” Hendon wrote.
A “taint team,” which Dershowitz said “may not be entitled to read or review many of the items seized,” is set up to review documents and “protect the subject of the search from violation of his or her constitutional rights.”
Dershowitz told Fox News on Monday that a law should be put in place to ensure that a judge is the one to review documents that include attorney-client privilege—not a taint team.
“The cases upon which the government relies do not authorize this extraordinary measure, and, to our knowledge, no court in this Circuit has ever forced a privilege-holder, over his objection, to rely on government lawyers to protect his attorney-client privilege as to materials that were seized from his own lawyer’s office,” Hendon wrote, urging the court to “enter an order enjoining the government from proceeding with any review of the seized materials, and directing the government to provide a copy of the seized materials to Mr. Cohen so that our firm and the President may review for privilege those seized documents that relate to him.”
Adult film star Stormy Daniels was paid $130,000 in exchange for signing a nondisclosure agreement about an alleged sexual encounter with Donald Trump in 2006. (AP)
Khuzami countered in a filing, “There is no basis for the assertion by the President that career federal prosecutors, designated to a Filter Team, cannot fairly evaluate whether certain files obtained by a judicially-authorized search warrant contain privileged material.”
The raid sought, among other documents, records related to the payment made to Daniels in the weeks leading up to the 2016 presidential election.
The $130,000 payment was in exchange for Daniels signing a nondisclosure agreement regarding an alleged sexual encounter with Trump in 2006, Daniels has said.
Daniels, who initially denied a sexual relationship with the president, is now seeking depositions from both Trump and Cohen. If approved, Trump would be the first sitting president to be deposed since former President Bill Clinton during Ken Starr’s independent counsel investigation.
Fox News’ Shira Bush contributed to this report.
Brooke Singman is a Politics Reporter for Fox News. Follow her on Twitter at @brookefoxnews.