Justice Department Tells Court That Trump’s Own Admissions Undermine Claims Of Attorney-Client Privilege Over Cohen Material

jonathanturley

8 years ago

160px-Official_Portrait_of_President_Donald_Trump_(cropped)

I (and many others) have cautioned the President for over a year that his tweets and public comments are underlying his case (and litigation like the immigration challenges) in federal court. Now the Justice Department has used the President’s latest comments in a call-in to “Fox and Friends” as eviscerating efforts to claim privilege over documents on his behalf in the review of the material seized from his personal lawyer, Michael Cohen. While opposing counsel like Democratic state attorneys general have used Trump’s comments against his Administration and the Justice Department has struggled to defend against such use, this is the first time that his own Justice Department is using the President’s comments effectively against his interests. In the meantime, it was revealed yesterday that the FBI seized 16 different cellphones from Michael Cohen.

I have repeatedly written on the failure of the President to sever ties to Cohen who has a reputation of a reckless and flawed attorney. I have also written that Cohen seemed to do everything possible to negate privilege protections for his client. Instead, the President doubled down on Cohen, not just calling him a good lawyer but his lawyer. Most recently on Air Force One (after having a very public dinner with Cohen), Trump declared “You’ll have to ask Michael Cohen. Michael is my attorney. You’ll have to ask Michael.”

The statement left many of us agape, but now the President seems to be changing direction and distancing himself from Cohen. In the call-in, the President insisted that Cohen only dealt with a “tiny, tiny little fraction” of Trump’s legal work. He also played directly into the narrative of prosecutors and Stormy Daniels’ attorney that Cohen is not really an attorney in most of his dealings: “Michael is a businessman. He also practices law, but I would say the big thing is his business and they’re [the feds] looking at something that has to do with his business. I have nothing to do with his business.”

Trump added that he “has many attorneys … sadly, I have so many attorneys, you wouldn’t even believe it . . . From what I understand, [the feds are] looking at his businesses, and I hope he’s in great shape. I’m not involved, and I’ve been told I’m not involved.”

The Justice Department pounced on the admissions to challenge the claims of attorney-client privilege raised on Trump’s behalf but Cohen and Trump’s counsel. Citing the statements of Sean Hannity as well, the Justice Department told the court. In a letter to U.S. District Judge Kimba Wood, Robert Khuzami, the deputy U.S. attorney for the Southern District of New York wrote: “These statements by two of Cohen’s three identified clients suggest that the seized materials are unlikely to contain voluminous privileged documents, further supporting the importance of efficiency here.”

Having a client saying on television that “This has nothing to do with me” and “I’ve been told I’m not involved” is obviously devastating to arguments of privilege just as Trump’s counsel was trying to assert his protections.

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