By John Cassidy
When Stephanie Clifford, known professionally as Stormy Daniels, walked into the Daniel Patrick Moynihan United States Courthouse, in downtown Manhattan, just before 2 P.M. on Monday afternoon, the photographers who had been waiting outside the building appeared to clamber on top of one another to get a good shot. “My God, they are climbing the walls,” one of the court’s security guards commented as Clifford, conservatively dressed in a pink jacket and skirt, entered with her lawyer, the shaved-headed Michael Avenatti, who was taking a break from the semi-permanent residence he’s recently taken up on CNN and MSNBC. (Later in the day, he would be back in his usual environs.)
Inside the courthouse, things were a lot quieter. Clifford took a seat on the right side of Judge Kimba Wood’s courtroom, on the twenty-first floor of the building. Most of the seats in the room were occupied by reporters. In the first row sat three lawyers from the office of the U.S. Attorney for the Southern District of New York, which last week raided the offices, home, and hotel room of Michael Cohen, Donald Trump’s personal lawyer and longtime fixer. Behind the government lawyers sat Cohen, whose presence Judge Wood had explicitly requested, flanked by two of his attorneys, Stephen Ryan and Todd Harrison, who work for the law firm McDermott, Will & Emery. (Fashion note: Cohen had dispensed with the gaudy plaid jacket he was photographed in last week and was wearing a blue suit.) In the third row were the President’s lawyers, led by Joanna Hendon, a partner at the law firm Spears & Imes.
Last week, Cohen’s lawyers filed a motion with the court to prevent the government from examining the materials it had seized in the raids without first sharing them with Cohen or an independent lawyer, known as a special master. Wood, who had held an initial hearing on the motion last Friday, began by asking whether the lawyers knew how many documents the government had taken. Thomas McKay, a prosecutor in the public-corruption unit of the U.S. Attorney’s office, said that he believed that about ten boxes of paper documents had been seized, plus up to a dozen electronic devices and hard drives.
Wood then asked Cohen’s lawyers about the list of his clients that she had asked them to provide over the weekend. Earlier in the day, Cohen’s legal team had delivered a letter to the court saying that he had three legal clients: Trump; Elliott Broidy, a Republican fund-raiser who, it was revealed last week, agreed to pay $1.6 million to a former Playboy Bunny with whom he had had a sexual relationship; and a third person whom the letter didn’t name.
McKay rose and argued that the fact Cohen had so few clients was “fatal” to the motion his lawyers had presented, because it contradicted their argument that the amount of attorney-client material contained in the seized files might be enormous. “Mr. Cohen has more attorneys of his own than he has clients,” he said. McKay also claimed that the refusal by Cohen’s lawyers to provide the name of the third client, even under seal, demonstrated how uncoöperative they would be if the court allowed them to review the seized materials, rather than following the usual procedure of allowing a “taint team” from the U.S. Attorney’s office to do the initial sorting work.
“The only thing that makes this case unusual, in any respect, is that one of Mr. Cohen’s clients is the President,” McKay said. The opposing lawyers had presented no argument why their client “should be treated differently to anybody else,” he added, and their real aim was merely to delay things.
For the moment, Judge Wood zeroed in on the identity of the third Cohen client. Cohen’s lawyers’ failure to identify this person “is not in accordance with the law in this Circuit,” she noted flatly. Harrison, rising to fight what already seemed like a lost cause, said, “the client is a publicly prominent individual,” who had requested that his name not be released. In addition, Ryan said, Cohen had a duty, under the rules of the legal bar, to protect the interests of his client.
Wood wasn’t having it. “If I order it”—the name—“to be released, he has no problem,” she said, referring to Cohen. During some more legal back-and-forth, she said to Ryan, “I understand he doesn’t want his name out there. That’s not enough under the law.” Then she told Ryan simply, “I’d like you to reveal it.” He asked if he should read out the name or pass it to the bench in a sealed envelope. Wood said he could do it either way. Harrison cleared his throat and said, “Your honor, the client’s name is Sean Hannity.” There were gasps and chuckles around the courtroom. Some reporters rushed out to convey the news.
When the arguments then returned to how to handle the seized documents, things picked up a bit for Team Cohen. The prosecutors want the initial examination to be carried out by a “taint team” that works for the U.S. Attorney’s office but is separate from the investigators looking into Cohen. Ryan and Harrison pressed their argument for Judge Wood to appoint a special master, who would go through the materials and decide which of them might be subject to attorney-client privilege.
“This is not just another case,” Harrison told the court. “We are talking about an unprecedented raid on the office and home of the lawyer of the sitting President of the United States.” The American public is watching, Ryan went on. “It is important to get it right and see that things are done fairly.”
After listening to Ryan for a bit, Judge Wood said that she thought he was “overstating” his argument, and she also noted that he and his colleagues had “mis-cited the law at times.” However, she also indicated that she was open to the idea of appointing a special master. “I have faith in the Southern District U.S. Attorney’s office that their integrity is unimpeachable,” she said, and added that the use of a taint team was “a viable option.” But then she said, “In terms of perception of fairness, not fairness itself but perception of fairness, a special master might have a role here. Maybe not the complete role, but some role.” Her main concern, she said, was to get things going “efficiently and speedily.”
That sounded like a potential victory of sorts for Cohen’s team, but Hendon, who used to work for the Southern District and is highly regarded in the federal courthouse, objected to the idea of appointing a special master. Speaking on behalf of the President, she argued that, before the government went any further, Trump himself, as the “the privilege holder,” should be allowed to examine any of the seized documents that related to him. “Mr. Cohen needs to get back all of the materials seized, so he can make an assessment of what relates to the President,” Hendon said. “He needs to identify that material and get it to me, so I can make claims of privilege.”
Such a process would take some time, Hendon conceded. But “the fact it is going to take time is not something that should be held against the privilege holder,” she insisted. She went on, saying, “Yes, privilege laws are a real pain for everybody. They always have been, they always will be. But we do this day in and day out, in federal courts all over the country, because it is the only way to vindicate the rights of the privilege holder.”
Hendon spoke directly and articulately, but her presentation didn’t seem to impress Judge Wood. At one point, Wood interrupted Hendon and read out part of a ruling in the case of United States v. Lynne Stewart, a defense attorney who was convicted, in 2005, of passing messages from her client, Sheikh Omar Abdel-Rahman, a radical Egyptian cleric, to his followers.
F.B.I. agents raided Stewart’s office, too, and her lawyers successfully objected to the use of a government taint team to process the seized materials. In a letter presented to the court over the weekend, which requested a temporary restraining order, Hendon and her colleagues had cited the Stewart case. But the bit of the Stewart ruling that Judge Wood read out went to the narrow nature of attorney-client privilege, and how it can’t be used to override other laws.
In response to these strictures, Hendon said that she would never contradict the judge who issued the Stewart ruling, but she didn’t back down. “Our point is that the government has no right to review privileged documents,” she said. “Only the President holds this privilege. He is objecting to anyone other than himself making the initial claim of privilege.”
A lawyer whom I was sitting next to noted that this sounded like an argument that Hendon might already be rehearsing for an appeals court. In response to Hendon’s presentation, McKay pointed out that, even if a taint team carried out the initial assessment, no documents would be handed to the investigative team until the government had consulted with the lawyers for Cohen and Trump. He also noted that the taint team had “every incentive” to be conservative in how it handled the seized documents, because of the potential for legal problems down the road if it mishandled any of them. Judge Wood seemed sympathetic to this argument. At one point, she said to Hendon, “Your premise is wrong.”
In the end, after almost three hours, she denied Hendon’s motion for a temporary restraining order, noting that the request was currently moot because the government wasn’t yet examining any of the documents. She ordered the U.S. Attorney’s Office to make electronic images of all the files it had seized and give copies to Cohen’s lawyers. Once all sides had a firm idea of how many documents were involved, Judge Wood said, it would enable the court to make a more intelligent decision of who should carry out the initial examination for privilege—the taint team or a special master. She also ordered the lawyers to provide a list of potential candidates to act as the special master.
That appeared to put things on hold for a few weeks. In the interim, McKay acknowledged, in response to Judge Wood’s statements, “We are not going to start reviewing the documents substantively.”
After most of the court had cleared, I spoke with Gary Becker, a veteran criminal-defense attorney who had been there to watch to the action. He noted that, although Judge Wood hadn’t reached a final decision on whether to appoint a special master, “the government certainly didn’t get the outcome it sought. It would very much like to go through these documents.”
Outside the courthouse, the media circus was still present. Clifford stopped before a bank of microphones and said, “For years, Mr. Cohen has acted like he is above the law. . . . He has never thought that the little man, or especially women, or, even more, women like me, matter. That ends now.” Cohen, who had remained silent throughout the afternoon’s proceedings, lingered inside with some security minders. Finally, he walked out and plunged into the scrum. Someone shouted, “You’re going to jail, Michael.” Cohen didn’t respond. He climbed into a black S.U.V. and was driven away.
- John Cassidy has been a staff writer at The New Yorker since 1995. He also writes a column about politics, economics, and more for newyorker.com.