Special master Barbara S. Jones ruled Thursday that nearly two-thirds of the documents that Michael Cohen, a former lawyer for President Donald Trump, has said were covered by attorney-client privilege should remain private and should not go to the government.
Cohen’s lawyers claimed earlier this year that 4,085 of the 887,000 documents that the Federal Bureau of Investigation (FBI) seized from his office and residence involved communications with President Trump and were protected by attorney-client privilege. Jones agreed with 2,633 of those claims — some 64.4%.
The other documents — 14,52 in all — will go to the FBI. According to lawandcrime.com, Cohen’s lawyers still felt that 22 of those ought to have been protected by attorney-client privilege, but said that they would not pursue their objections to those in court.
Attorney-client privilege protects communications from a client to his or her attorney. The attorney may not reveal any of those communications and cannot be compelled to do so by the government — unless they may have been made in furtherance of a crime.
The fact that the special master allowed one-third of the challenged documents to go to the government does not necessarily mean that they are evidence of a crime. It simply means that the privilege would not apply — which could happen for a wide variety of reasons. For example, if a third person was present for a discussion, or carbon-copied on an email, that could mean that the client could not expect the attorney-client privilege to apply.
On Friday, the New York Times revealed that Cohen had made a recording of a conversation with Trump in 2016 in which they had discussed paying former Playboy model Karen McDougal, who claimed she had an affair with Trump ten years before, after the birth of Trump’s youngest son, Barron, whose mother is Trump’s third wife, First Lady Melania Trump.
“Mr. Cohen’s lawyers discovered the recording as part of their review of the seized materials and shared it with Mr. Trump’s lawyers, according to three people briefed on the matter,” the Times reported. It is possible Trump’s lawyers leaked the news to the Times to “get ahead of the story” — i.e. to present it in the best possible light before it was produced or leaked by the government.
Rudy Giuliani, who now represents Trump, and said he heard the recording, told the Times Trump had done nothing illegal. Trump told Cohen to write a check if a payment was to be made, therefore creating a paper trail; and no payment was made in the end, Giuliani said. Questions surround $150,000 that McDougal was paid for her story by the National Enquirer, which then allegedly buried the story to protect Trump, who is known to be close to David Pecker, the CEO of the company that owns the Enquirer.
The Wall Street Journal reported Friday that the conversation between Cohen and Trump was in person; that it likely happened in September 2016; and that it happened after McDougal had already been paid for her story, about which Trump had not known.
If investigators suspect that there was a payment that was for the benefit of the campaign but not reported to the Federal Elections Commission (FEC), that could be a violation of campaign finance rules. As the Washington Post noted with regard to the Stormy Daniels case, reporting violations rarely involve criminal liability and are normally handled by the payment of an administrative fine. Such fines are common in campaigns; the FEC fined President Barack Obama’s 2008 campaign $375,000, for example.
Critics have noted that the FBI’s seizure of documents from Trump’s attorney is an unusually aggressive measure for a suspicion of campaign finance violations. While the American Civil Liberties Union (ACLU) actually celebrated the Cohen raid as a sign that “no one — not even the president, let alone his lawyer — is above the law,” other civil libertarians were shocked by the raid and the potential risk to attorney-client privilege. Retired Harvard Law School professor Alan Dershowitz called the FBI raid “a very dangerous day today for lawyer-client relations” in April. He speculated that the FBI was attempting to pressure Cohen to turn against Trump, and he criticized the ACLU for abandoning the civil rights of the president for what he said were political reasons.
Michael Avenatti, the attorney for porn star Stormy Daniels who has made himself into a prominent Trump antagonist, urged Cohen on Twitter to release all of the recordings he may have made of his conversations with the president:
And there is a reason why I used the term that I did and demanded the release of the #TrumpTapes as opposed to the #TrumpTape. If Michael Cohen is a patriot, then ALL of the tapes should be released to the American people. Now. Too much is at stake. #Basta
— Michael Avenatti (@MichaelAvenatti) July 20, 2018
If Cohen released recordings of his conversations with the president on his own, as Avenatti urges, he would violate attorney-client privilege and would likely lose his law license. Only the client — in this case, Trump — can waive the privilege.
Judge Kimba M. Wood is presiding in the matter, which does not yet involve criminal charges. She was appointed by President Ronald Reagan.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.