Thursday Hearing May Shape Michael Cohen Criminal Probe

Michael Cohen, President Donald Trump’s personal attorney, center, leaves federal court in New York on April 16, 2018. Cohen filed papers with a federal judge in Los Angeles on April 25, 2018, saying he will assert his Fifth Amendment rights, the constitutional right against self-incrimination, in a lawsuit brought by porn actress Stormy Daniels, who said she had an affair with Trump. (AP Photo/Mary Altaffer, File)

MANHATTAN (CN) – Facing a court hearing on the criminal investigation of embattled attorney Michael Cohen, a federal judge received a flurry of letters boasting of Presidential Donald Trump’s legal resources for handling attorney-client privilege matters.

After the Trump Organization announced the company hired a “leading third-party e-discovery provider”, the president’s personal attorney Joanna Hendon offered an equally vague promise of a “preeminent e-discovery firm.”

In a two-page letter, Cohen’s attorneys at McDermott Will & Emery unveiled its “large in-house discovery center.”

The string of superlatives came from courtroom filings previewing a highly anticipated hearing on Thursday to determine who will be reviewing the files that the FBI seized from Cohen’s home, office and hotel room on April 9.

Federal prosecutors want their internal “taint team” to determine whether any of the files they collected qualify for attorney-client privilege.

On Wednesday, attorneys for Cohen, Trump, and the Trump Organization urged U.S. District Judge Kimba Wood to leave that task in the hands of a court-appointed “special master,” who would allow each of their e-discovery firms to separately review the files.

“Through this provider, [the Trump Organization] has dedicated e-discovery facilities and personnel,” the company’s attorney Alan Futerfas wrote in a 2-page letter, which otherwise does not identify the firm by name.

“In addition, the provider’s personnel are supplemented by three lawyers and a paralegal from this law firm and five lawyers and a paralegal currently employed in the legal department of [the Trump Organization],” the letter continues. “[The Trump Organization] thus has abundant resources to process and review the materials we anticipate receiving from the McDermott firm.”

The McDermott firm represents Cohen, who declared on Wednesday that he will assert his Fifth Amendment rights in separate proceedings in a California lawsuit filed by adult-film actress Stormy Daniels.

Born Stephanie Clifford, Daniels made an appearance at last week’s proceedings in a lawsuit that Cohen filed in New York to protect what he claims are attorney-client protected materials. Cohen’s unusual lawsuit here has sparked extraordinary courtroom proceedings into an active criminal investigation that would typically be conducted in private.

Presiding over this matter, Judge Wood asked prosecutors Wednesday for an update on what files they handed over to Cohen.

“The agenda will include an update from the government on its production to Mr. Cohen’s counsel of a set of the seized materials,” she wrote in a 2-page order setting the status conference.

During the last hearing on April 16, attorneys for Cohen and Trump requested that Judge Wood designate a so-called “special master,” a court-appointed third party who would be relied upon here to ensure that prosecutors do not use protected files in their probe. Attorneys for Trump and his business empire have since been granted the right to intervene in the matter.

Cohen’s attorneys subsequently asked Wood to consider four private attorneys for the job of special master. Three of this group have ties to former New York City Mayor Rudy Giuliani, Trump’s former surrogate and current counsel.

Prosecutors recommended three retired federal magistrates to sort through the files.

If a special master will be appointed, the public may learn what role it will play on Thursday.

“Counsel should be prepared to address the process to be undertaken by a special master, should one be appointed, to review claims of privilege,” Wood wrote.

University of Alabama Law professor Joyce Alene, a former federal prosecutor, told Courthouse News in an interview that she believed leaving privilege inspection in the government’s hands would be typical and sufficient.

“The advantage of using a special master in this particular situation would be that it would be a way of really bending over backwards to highlight the legitimacy and bona fides of the process,” Alene said.

“I think it’s really important for me to say that I think that that’s unnecessary,” she added.

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