Request for Donald Trump and his legal fixer Michael Cohen to be allowed to vet the documents seized from Cohen by the FBI before prosecutors can examine them was rejected by a federal judge on Monday.
But Judge Kimba Wood said she might appoint an independent lawyer to review the trove of records to find those protected by attorney-client privilege possibly with a specific remit of checking documents related to the president.
“In terms of the perception of fairness, a special master might have a role here,” Wood said at Manhattan federal court, without immediately issuing an official ruling.
Wood also denied a request from Trump for a temporary restraining order against his own justice department, which would have explicitly ordered prosecutors to not begin going through the files from Cohen’s home, office and hotel.
The judge’s decisions dealt a blow to Trump and Cohen, who asked to have the first look at Cohen’s files after Trump denounced the FBI raids as being part of a political “witch-hunt” and declared: “Attorney-client privilege is dead!” An attorney for the president on Monday accused prosecutors of “government overreach”.
Cohen, who has worked as a lawyer and troubleshooter for Trump over the past decade, is the subject of a criminal investigation that prosecutors in New York have said focuses on his private finances and business interests.
The FBI last week searched Cohen’s properties along with a safe deposit box, phones and other devices after obtaining a search warrant from a judge, apparently out of concern that Cohen would not comply with a subpoena. The seized material has not yet been made available to prosecutors investigating Cohen.
Stephen Ryan, an attorney for Cohen, said on Monday that five paragraphs in the search warrant paperwork were phrased in such a way as to seek “the papers of the president of the United States that are in the possession of my client”. He declined to explain further when asked by the Guardian following the hearing.
Communications between lawyers and clients are typically confidential under the doctrine of attorney-client privilege. But an exception exists for documents containing evidence that the attorney was involved in a crime.
Searches of any attorney’s office by the federal government are highly unusual and typically trigger the appointment of a so-called “taint team” of prosecutors, who are walled off from colleagues on the main investigation, to root out privileged files.
But Joanna Hendon, an attorney for Trump, told the court on Monday: “He is objecting to anyone other than himself making the initial determination of privilege.”
FBI agents are believed to have taken documents relating to a $130,000 payoff to Stephanie Clifford, the pornographic actor known as Stormy Daniels, who alleged she had a sexual encounter with Trump and was paid to keep quiet. Investigators are likely to examine whether the payment was legal under election campaign finance laws and whether Cohen disclosed the true reason for borrowing the funds.
Clifford and her attorney attended Monday’s hearing but did not intervene. After being seated by officials in a corner of the room far from the legal action, Clifford appeared bored and leaned her head against the wall. Court artists craned to observe Clifford through their magnifying spectacles.
Thomas McKay, an assistant US attorney, argued against the request from Cohen and Trump, saying it was not justified or legally sound. McKay accused the pair of deliberately trying to delay the investigation into Cohen and slow down proceedings for years.
Todd Harrison, another attorney for Cohen, complained about this apparent accusation of bad faith. Insisting that Cohen’s team were “pretty good people”, he prompted a withering response from the judge. “It’s not that you’re not good people,” said Wood. “It’s that you’ve misstated the law.”
Joanna Hendon, an attorney for Trump, conceded that allowing them to review the seized files for privileged documents “will take a long time” but blamed the justice department for using a search warrant to run a dragnet through Cohen’s files.
McKay said Cohen’s case should be treated “like any other white-collar case”, as his work as an attorney was not central to their inquiries. “Mr Cohen might have a legal degree, but this investigation and search is largely focused on his private business dealings and personal financial dealings,” he said.
But attorneys for Cohen and Trump were at pains to disagree. “We’re talking about an unprecedented raid on the office and the home of the sitting president of the United States’s personal attorney,” said Harrison.
Describing the case as “combustible”, Harrison said the intense public and media interest in the case, and “partisan attacks” around the subject, meant that special measures were necessary to ensure the appearance of fairness.
But McKay hit back at the claims, accusing the Cohen-Trump side of “trying to drum up media attention and then turning around and citing that media attention” as the basis for special treatment.
“Both Mr Cohen and President Trump made inflammatory statements about this case. Our office has done no such thing,” said McKay.
McKay returned repeatedly to his central argument that Cohen, and in turn Trump, should not be given allowances unavailable to ordinary citizens.
“It would not protect the public confidence in the administration of justice to give Mr Cohen and the president special treatment,” said McKay, adding later: “Just because Mr Cohen has a powerful client does not mean he’s entitled to special treatment.”
Hendon denied seeking unusual concessions for Trump and said he should merely be allowed to defend his privilege as an attorney’s client. “I’m just asking for the president to be given the opportunity to exercise his sacred right,” she said.
Wood directed prosecutors to produce a copy of all Cohen’s files for his team and to begin searching metadata to estimate the volume of material. Then, she suggested, a taint team would proceed. She also asked prosecutors and Cohen’s attorneys to each give her a shortlist of four nominees for the role of special master.>