Under normal circumstances, a motion to restrain the fruits of a duly executed search warrant would have little chance of succeeding. When the raid takes place on an attorney for the purposes of seeking information about a client, perhaps the odds might improve. At least that’s what Michael Cohen’s attorneys — and an attorney from Donald Trump, too — hope in a hearing today, as they ask a federal judge to enjoin the Department of Justice from using any of the material seized earlier this week in a raid:
A hearing is scheduled Friday morning in federal court in Manhattan related to the FBI search of the office, home and hotel room of President Donald Trump’s personal attorney Michael Cohen.
The hearing will address a temporary restraining order filed by Cohen regarding the search warrant, which was executed earlier this week, a source familiar with the matter tells CNN.
Cohen’s attorneys aren’t arguing to throw out all of the materials, at least not at this stage. They want Judge Kimba Woods to order that Cohen’s attorneys get first crack at determining what is protected by privilege:
JUST IN: U.S. judge says lawyers of Trump attorney Cohen applied Thursday evening for first chance to identify documents from office search that may be a work product or subject to attorney-client privilege pic.twitter.com/2WlFl9Hmkk
— Reuters Politics (@ReutersPolitics) April 13, 2018
The request results from a complaint about the scope of materials seized, the New York Post reports, rather than a direct challenge as to the legality of the search warrant. That doesn’t necessarily preclude such an effort later down the road, but first Cohen’s attorneys apparently want to regain some control over the material. On the other hand, they’re also arguing that all the material falls under privilege. That’s why Trump has an attorney at the hearing, too:
Lawyers for President Donald Trump and his personal attorney, Michael Cohen, have told a federal judge in New York that they believe some of the documents and devices seized from Cohen during an FBI raid are protected by attorney-client privilege, and they want a chance to review the material before prosecutors get to examine them. …
An attorney for the president, Joanna Hendon, told the judge that Trump has “an acute interest in this matter.”
It’s tough to see how Woods can square the competing interests here without challenging the warrant itself, however. If the warrant is valid and enough probable cause exists to raid Cohen’s offices, then it doesn’t make a lot of sense to put Cohen (or his representatives) back in charge of the material. That was the status quo ante prior to the warrant, after all; Cohen was reportedly cooperating to some extent, but not enough to satisfy the Southern District of New York office of the DoJ.
Don’t forget that the DoJ’s guidelines on this kind of a raid clearly relies on the danger of evidence destruction as a primary motive for the extraordinary move, emphasis mine:
Alternatives to Search Warrants. In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law. Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.
Without that being an issue, the DoJ guidelines push prosecutors to rely on subpoenas or negotiations for access to arguably privileged material from “subject attorneys.” The government will presumably argue that they had probable cause to worry that Cohen was going to destroy evidence or find ways to hide it. Without that, their raid might well have overreached, and Woods might be inclined to tube the whole thing. But if the DoJ can make a good showing that the material might have been in danger of evaporating, would Woods hand back control of it to Cohen, even while arguing over the warrant itself? That seems very, very doubtful.
There might be another option for Woods, at least for the short run. The DoJ has appointed a special master of the material to vet it for legitimately privileged communications, but that master is from within the DoJ itself. Woods might appoint an uninterested party to review the materials for the court rather than have either side vet it, at least for now. That would give Woods a little breathing room, but in the end it seems much more likely that the DoJ will win this fight. Still, Cohen has nothing to lose in forcing the issue now, rather than wait for a trial down the road.