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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
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Judge Tapped as Privilege Master in Cohen Case, Stormy Daniels Intervenes

A federal judge appointed an independent special master Thursday to make sure that no files seized by the FBI from embattled attorney Michael Cohen qualify for attorney-client privilege.


MANHATTAN (CN) – The porn actress Stormy Daniels leapt in to the criminal investigation of the president’s embattled attorney Thursday at a hearing where a former federal judge was selected to ensure that no files seized by the FBI are shielded by privilege.

Though U.S. District Judge Kimba Wood appeared inclined Thursday to grant the motion to intervene filed this morning by California attorney Michael Avenatti, who represents Daniels, an objection by U.S. Attorney Thomas McKay put the matter on hold.

“I have difficulty finding any flaw in Mr. Avenatti’s position,” Wood said.

“He is not asking for me to state that any of what he surmises or believes is true,” she added. “He just wants to be able to have a seat at the table to look at anything relating to his client.”

The table here came together shortly after April 9 when FBI agents executed a search warrant on the apartment, hotel and office of Michael Cohen, the longtime personal attorney of President Donald Trump.

Claiming that the raid could have swept up materials protected by attorney-client privilege, Cohen requested earlier this month that Judge Wood appoint a special master. The U.S. Attorney’s Office argued meanwhile that their internal “taint team” could be trusted to conduct the review.

Wood overruled the government's concerns this afternoon, saying “that a special master makes sense at this point," though she also credited the “integrity” of the government’s filter team.

Wood also emphasized her belief that the involvement of a special master will not slow down the case, "assuming everyone works as hard as you’ve represented you will work."

Opting not to choose from any of the candidates proposed by Cohen and the government, Wood gave the job of special master to Barbara Jones of the Bracewell firm who has 16 years experience as a federal judge.

Former New York City Mayor Rudy Giuliani took his name off the door of the Texas-based Bracewell in 2016 when he moved to the Greenberg Traurig, while also acting as a surrogate in the presidential election for Trump.

Jones meanwhile was appointed to the bench in 1995 by President Bill Clinton, after working as a federal prosecutor and as chief assistant to Robert Morgenthau when Morgenthau was Manhattan district attorney.

The government wants Jones limited to reviewing attorney-client privilege matters, but Cohen’s attorneys requested that Jones also sort out what they called “nonresponsive” personal files like medical records and family photos not encompassed within the scope of the warrant.

Prosecutor McKay warned that granting the special master too wide a scope would hobble the government’s criminal investigation of Cohen.

“If Mr. Cohen's counsel are distracted from the task at hand, which is identifying privileged material, so they can also create a log or range of things that they think are improperly personal, you are dramatically delaying this process, expanding the burden on the special master, and really slowing this investigation down in a way that we think is not only damaging to the law enforcement interests at stake but also is not related to the interests at stake,” McKay said.

Judge Wood declined to rule on the matter today, but she appeared to grant the special master latitude to use her independent judgment.

“Suppose there is a medical file on his wife or child,” Wood said. “That clearly is, I think, nonresponsive. You would probably agree that if Judge Jones described that to you, you would say we don't need to see that.”

Cohen’s attorney Stephen Ryan noted that the special master could very well encounter such a hypothetical.

“Mr. Cohen has two children, one 18, one 22. I've met with members of the family,” he said. “We do believe that we ought to be able to do exactly what I heard the court say a second ago. For example, if there is a file that has family photos, I ought to be able to tell Judge Jones that this range is that, and she can confirm it and then let the government know.”

Outside the court after the hour-long hearing, Avenatti praised the newly appointed special master’s “incredible background from a number of different areas of the law.”

“We think she is nothing short of an exceptional choice,” Avenatti said.

Avenatti also took a dig at the president for his appearance this morning on Fox News.

“I think the president should appear on ‘Fox & Friends’ every morning,” Avenatti said. “I thought it was exceptional for our case and I thought it was disastrous for him.“

In a freewheeling 30-minute appearance, Trump confirmed for the Fox hosts that Cohen performed legal work for him with regard to Daniels.

“He represented me with this crazy Stormy Daniels deal,” Trump said. “He did absolutely nothing wrong.”

While the 2016 election was underway, Daniels says Cohen paid her $130,000 in hush money to keep from talking about a one-night stand she claims to have had with Trump. Cohen has insisted meanwhile that the president knew nothing about the payment, which the attorney claims to have made with his own money.

Daniels, who is known offscreen as Stephanie Clifford, filed suit in Los Angeles to have the settlement declared void, but Cohen wants this matter put on hold because he says it implicates his Fifth Amendment right against self-incrimination.

Appearing before the New York court without his actress client on Thursday, Avenatti voiced concern that Cohen obtained documents about Daniels without her consent.

While a copy of the motion was not available on the court docket, Avenatti shared the document before the noon hearing via Twitter. The motion calls it possible that Keith Davidson, a previous attorney for Daniels, improperly allowed Cohen to access Davidson's direct communications with Daniels. In addition to these communications, which would be protected by attorney-client privilege, Avenatti said the FBI raid may have also implicated protected settlement communications between Davidson and Cohen.

Avenatti doubled down on these claims in court. “We have substantial reason to believe based on my communications directly with Mr. Davidson that there was an improper or a series of improper communications of attorney-client privileged information belonging to my client to Mr. Cohen both during the negotiation period of this [non-disclosure agreement] as well as thereafter,” he said.

Declining to take a position on whether Daniels should be allowed to enter the case, prosecutor McKay said that the government wants to review Avenatti’s 103-page filing first.

Judge Wood directed the parties to return to court for another hearing on May 24.


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Categories / Criminal, Government, Politics

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