MANHATTAN (CN) – Confirming for the first time that President Donald Trump’s private counsel is the subject of a months-long criminal investigation, federal prosecutors asked a judge Friday to deny Michael Cohen's unprecedented request to get first crack at evidence seized from his home and office.
“Cohen’s novel proposal would set a dangerous precedent,” Assistant U.S. Attorney Thomas McKay wrote in a 22-page legal brief.
“It would permit subjects or targets of an investigation, who have not yet been indicted, to delay government investigations into their criminal conduct by giving them, and not the government, the authority to make a unilateral determination not only of what is privileged, but also of what is ‘responsive’ to the warrant,” he added.
Led by Deputy U.S. Attorney Robert Khuzami, who received the case after Southern District of New York chief Geoffrey Berman recused himself, the opposition brief filed this afternoon argues that the government can be trusted not to violate any attorney-client confidentiality issues. Black-mark redactions throughout the brief keep secret the specific crime for which Cohen is being investigated.
The week that began with a dramatic early-morning raid on the home, office and hotel room of a sitting U.S. president’s personal attorney ended in equally dramatic fashion in a packed courtroom this morning.
There, U.S. District Judge Kimba Wood convened a hearing to resolve Cohen's request for a temporary restraining order that would let his team conduct the first privilege inspection over the files seized Monday by the FBI.
Trump’s attorney Joanna Hendon, from the firm Spears & Imes, argued at the hearing that Judge Wood should delay making a decision, saying she needs more time because the matters are “so weighty.”
"He is the president of the United States," said Hendon, who is herself a former Manhattan federal prosecutor.
“Ultimately, in my view, this is of most concern to him,” she added later. “I think the public is a close second. And everyone who has ever hired a lawyer is a close third.”
Referring to what she described as a rush to use the seized documents, Hendon said: "There's an appearance of fairness problem here.”
Trump retained Hendon two days after the raid of Cohen's properties, and the president is listed on the courtroom docket as an intervening party.
With the docket currently under seal, Judge Wood told that press and public that she would provide as much transparency as she could given the sensitivity of the situation.
“The compelling interest here is protecting the ongoing criminal investigation as well as the attorney-client material,” she said.
Rarely have U.S. court proceedings been convened in public over a search warrant in a criminal probe, but an attorney advocating for the media’s First Amendment right of access noted that the cat already is out of the bag about the investigation.
“It's about as full of a courtroom as I've ever been in,” said ABC News’ attorney Rachel Strom, from the firm Davis Wright Tremaine.