MANHATTAN (CN) – Prosecutors named three retired federal judges Wednesday who could ensure that the investigation of President Donald Trump’s attorney Michael Cohen does not breach attorney-client privilege.
Retired magistrates Frank Maas and Theodore Katz now both work at the private dispute-resolution company JAMS, after roughly four decades of combined experience on the federal bench.
James Francis IV is retired federal magistrate as well who now works as an academic at CUNY Law School.
In contrast to this trio, however, the four candidates Cohen’s legal team suggested just before midnight are all attorneys in private practice.
The first choice, Guidepost Solutions chairman Bart Schwartz, once worked as a prosecutor for then-U.S. Attorney Rudy Giuliani, who later became a New York City mayor and top Trump surrogate.
Ropes & Gray partner Joan McPhee, the only woman of the group and a fellow ex-prosecutor under Giuliani, represented an engineer accused of obstruction of justice in the Deepwater Horizon spill; her client’s charges were dropped three weeks before trial.
Another nominee, Park Jensen Bennett founding partner Tai Park, went to blows against New York federal prosecutors here as defense counsel to Chinese billionaire Ng Lap Seng, who was convicted in a high-profile corruption case involving the United Nations.
Cohen’s final candidate, George S. Canellos, was a Securities and Exchange Commission enforcer whose current partnership at Milbank, Tweed, Hadley & McCloy stoked controversy about the revolving door between Wall Street and its regulators.
Representatives for Schwartz, Park and McPhee declined to comment for this article; Cannellos did not immediately respond to a request for comment.
Noting the bipartisan appeal of all the candidates, Norm Eisen, a former ethics czar for President Barack Obama, said they would pass muster for the position.
“They’re dipping into the rich pool of capable lawyers,” Eisen said in an interview.
“The names on the Cohen list are respected people from respected institutions or firms, often with Democratic ties in the case of Mr. Cannellos.”
That seal of approval carries particular weight because Eisen heads the anti-corruption watchdog Citizens for Responsibility and Ethics in Washington, which brought a federal complaint here over Trump’s business entanglements under the emoluments clause of the Constitution.
“When you take somebody who is more familiar with defense practice, they at least have the capacity to see the world as a defense lawyer does, to see why the attorney-client privilege is the way it is,” Eisen said.
“On the government side, this is what magistrate judges do,” he added. “Every one of these judges on the list has likely held hundreds, thousands of evidentiary hearings on motions to suppress evidence.”
Though U.S. District Judge Kimba Wood called at a hearing earlier this week for both sides to name nominees, she made clear that she remains undecided on the necessity of appointing a so-called “special master” in charge of privilege issues.
“I have faith in the Southern District U.S. Attorney's Office that their integrity is unimpeachable,” Wood said Monday.
“So, I think that a taint team is a viable option,” she added later. “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.”
Elizabeth de la Vega, a former federal prosecutor from the Northern District of California, predicted that this perception would prompt Judge Wood to select one of the prosecution’s magistrates, if she appointed any special master.
"Cohen's legal team's selection of attorneys in private practice was not a smart move, especially since at least three out of the four have ties to Rudy Giuliani,” she said in an email.
De la Vega also noted that Park, the third, was tapped by Giuliani to the New York City Civilian Complaint Review Board in 2001.
“Because it is Cohen and Trump who are seeking the special master - and the government opposes any appointment - the judge would be particularly averse to appointing one who might have a bias," de la Vega wrote.
"Retired magistrate-judges would likely be far more appealing choices to Judge Wood here,” she continued. “They are known quantities, part of the federal ‘judicial family’ and have vast experience in resolving disputes of all kinds, including privilege issues.”
Proposing a court date of May 25 to discuss the status of the case, deputy U.S. Attorney Robert Khuzami noted that appointing a special master would delay the investigation until at least late June.
“In contrast, the government’s filter team could begin reviewing the materials – materials it lawfully obtained pursuant to a judicially authorized search warrant – this month (April), as the electronic device images become available on a rolling basis,” prosecutors wrote in a 2-page letter today.
Should Judge Wood appoint a special master, prosecutors urged that she choose the ex-magistrates on their list, whom they note “have many years of experience in resolving disputes on the issue of privilege in the context of criminal investigations.”
De la Vega said that Wood may choose a “split the apple” options.
“If the court grants the Cohen/Trump team's motion for a special master, then the special master appointed should be one chosen by the other side, the government," she added.
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