MANHATTAN (CN) – At an explosive court hearing where it was revealed that a secret client of Michael Cohen’s beside President Donald Trump is none other than conservative pundit Sean Hannity, a federal judge refused to put a restraining order Monday on the files that prosecutors seized last week from the embattled lawyer.
“I have faith in the Southern District U.S. Attorney’s Office that their integrity is unimpeachable,” U.S. District Judge Kimba Wood said in court.
Hannity’s name arose this afternoon after attorneys for Cohen alerted the court in a brief that the FBI’s raid of Cohen’s home, hotel and office implicates privileged materials from three clients: Trump, the unnamed individual now revealed to be Hannity and Elliott Broidy, the recently jettisoned deputy finance chair of the Republican National Committee.
At around 2:50 p.m., Judge Wood firmly directed Cohen’s lawyers to disclose the third client’s name, having dismissed their argument that the client had personally asked to be protected from embarrassment.
Wood refused to let Cohen keep the client’s name secret.
“I understand that he doesn’t want his name out there, but that’s not enough under the law,” she said.
Stephen Ryan of McDermott, Will & Emery reluctantly but quickly answered that the client was Fox News personality Sean Hannity, eliciting a mix of gasps of surprise from some seats and a near-hooting, deep chuckling from others.
Well before Hannity’s name was uttered, Monday had been shaping up to be a media sensation. The hearing already pitted federal prosecutors against two teams of Trump’s attorneys, but a courtroom appearance by an alleged presidential mistress layered additional buzz.
Throngs of reporters, photographers and videographers waited in anticipation for porn actress Stormy Daniels, whose Los Angeles-based attorney Michael Avenatti promised his client’s attendance on a live CNN broadcast this past weekend.
For all of the tabloid-fueled suspense at her arrival, Daniels made a muted entrance to match her pink-lavender skirt suit with a black shirt under the jacket. She filed discreetly through the side entrance of the courthouse, before her attorney Avenatti quietly escorted her into the back row of the courtroom.
After the roughly two-hour hearing ended, Daniels told reporters that Cohen’s time for reckoning had come.
“For years, Mr. Cohen has acted like he is above the law,” she said.
Daniels contends that Trump’s associates bullied her into signing a $130,000 settlement so that she would not speak about their fling before the 2016 election.
Avenatti said at a press conference Monday afternoon that the revelation about Hannity gave a glimpse into the power of Cohen’s inner circle.
“One thing I will say is this, I said last Friday and this weekend that Michael Cohen was radioactive and that anybody that was associated with him in the last 20 to 30 years should be very, very concerned,” Avenatti told reporters.
“Anyone that has any contact with this man in the last 20 years should be very concerned what secrets of theirs are in these documents,” he added later.
Cohen’s other client, Briody, stepped down from the RNC Friday after confirming that Cohen helped him negotiate a $1.6 million payment to a Playboy playmate who said that Broidy impregnated her.
Hannity tried to downplay his association with Cohen on Twitter.
“Michael Cohen has never represented me in any matter,” Hannity tweeted Monday. “I never retained him, received an invoice, or paid legal fees. I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective.”
Tug of war over evidence review
For his part, Cohen sat stonily most of the afternoon, occasionally whispering and passing notes to his attorneys. Cohen became audibly upset at one point after prosecutor Thomas McKay said the government only had a handful of electronic devices to send for electronic imaging at a crime lab in Quantico, Virginia.
“That’s not true,” Cohen sputtered to his attorneys.
His lawyer Todd Harrison later claimed that the government’s tally did not account for multiple cellphones and hard drives.
Ultimately rejecting a restraining order against prosecutors, Wood took a step toward considering a proposal sought by both Cohen and Trump: a privilege review by an independent third party known as a special master.
Trump’s attorney Joanna Hendon said such a precaution would be necessary to protect a sanctified privilege.
“The privilege, your honor, has been recognized for more than 400 years,” Hendon said. “It’s the oldest of the privileges known to the common law and the most revered. Nothing less than the fair and just operation of our legal system, which is a beacon to the world and to history, depends on this privilege and without it, no client could speak freely with counsel and no attorney could competently serve their client.”
Wood ordered the parties to suggest candidates to serve this function, but the judge did not commit to actually appointing one.
Federal prosecutors have been fighting hard against this option, noting that appointing one could hobble what they call “a fast-moving investigation.”
“We’ve been focusing on the number of clients and the volume of privileged communications, because we think this is just the run-of-the-mill case, the kind of case where every day we have filter teams doing privilege reviews,” McKay said.
Federal prosecutors have depicted Cohen as more of Trump’s fixer than a practicing attorney.
“Mr. Cohen sets forth he’s got more attorneys of his own than he has clients,” McKay noted today.
Ex-U.S. Attorney Preet Bharara, who was fired by Trump, told CNN on Sunday that Cohen is “barely a lawyer.”
When the government filed its first brief, Cohen’s only publicly identified client was the president.
“And there is reason to doubt that even communications with his only publicly identified client regarding payments to Stephanie Clifford, who is also known as Stormy Daniels, would be protected by attorney-client privilege,” the brief states.
“Among other things, President Trump has publicly denied knowing that Cohen paid Clifford and suggested to reporters that they had to ‘ask Michael’ about the payment,” it continues.
Given the number of clients, McKay scoffed at Cohen’s claim that the seized records implicates thousands of privileged documents.
“The motion should be denied because the factual premise for it is faulty,” McKay said, estimating that the government seized no more than “10 boxes of physical documents.”
“It is going to be the hard drives, the electronic devices, that’s where you’re going to see the real volume,” he added.
In his legal brief, Cohen’s legal counsel claimed that taking the privilege process out of the prosecution’s hands would “protect the integrity of the government’s investigation from the toxic partisan politics of the day and attacks on the impartiality of the Justice Department and the [U.S. Attorney’s office].”
Blasting the remark’s irony, McKay reminded the court that the prosecution had no role in those attacks on its reputation.
“There are three parties in this case,” the prosecutor said. “Only two of them have made public comments about the searches. Last Monday, both Mr. Cohen and President Trump made inflammatory comments about this case. Our office has done no such thing.”
While declaring her faith in the government’s privilege team, Wood agreed that a neutral third party could allay public concerns.
“In terms of perception of fairness, not fairness itself, but perception of fairness, a special master might have a role here,” she said.
Leaving the next hearing date undetermined, Wood ordered the prosecutors to file a proposal on Wednesday proposing possible options for a special master and outlining potential privilege claims at issue.