(Bloomberg) -- Donald Trump’s personal lawyer, Michael Cohen, says he gave legal advice to three clients in the past year, including the president and Elliott Broidy, former deputy finance chairman of the Republican National Committee.
Cohen declined to identify the third client in a filing in Manhattan federal court, where he will appear Monday at a hearing to determine whether federal prosecutors can review materials seized in an FBI raid on his office, home and hotel room last week.
U.S. District Judge Kimba Wood on Monday will consider Trump’s extraordinary request that she block his own Justice Department from viewing evidence seized by the FBI.
On Sunday, the president’s attorneys filed court papers saying some material seized may involve privileged communications between Trump and Cohen, and should be reviewed first by the president, not federal prosecutors in New York who are investigating Cohen. Prosecutors want a separate group of government lawyers to review the material first and determine what’s covered by the attorney-client privilege.
“In the highly politicized, even fevered atmosphere that envelops this matter, it is simply unreasonable to expect that a team of prosecutors, even if not directly involved in the separate investigation of Mr. Cohen, could perform a privilege review in the manner necessary to safeguard the important interests of the President,” Trump’s attorney, Joanna Hendon, wrote in an eight-page letter to the judge.
The judge had ordered Cohen to identify his clients by Monday morning and to appear in court. One of those clients was Broidy, who resigned from the RNC on Friday after it was disclosed that he paid $1.6 million to a Playboy Playmate with whom he had an extramarital affair. She became pregnant and chose to have an abortion. Cohen negotiated the nondisclosure agreement with the woman.
Cohen also identified lawyers at five different firms who have provided legal advice to him in the past year. In the filing, Cohen’s lawyers said they should review the seized material before prosecutors, or a neutral attorney should do so and report to the judge. They said the dispute was over “perhaps the most highly publicized search warrant” in recent history.
The legal maneuverings are the latest twists in parallel U.S. investigations that Trump has assailed as a “witch hunt.” In Washington, Special Counsel Robert Mueller is looking into possible ties between the Trump campaign and Russian interference in the 2016 election, while the U.S. attorney in New York has opened his own investigation of Cohen’s activities. Trump’s aides consider the Cohen inquiry, which has been underway for several months, to pose the greater threat to the president, the New York Times reported April 13.
“The question now before the court is, who should perform the initial review of the seized materials to assess whether they are, or are not, subject to a valid claim of privilege,” Hendon wrote. The choice is between a “team consisting of colleagues of the prosecutors assigned to this investigation, or the President, who is the holder of the privilege.”
At a court hearing on Friday, Cohen’s lawyers estimated that the evidence seized by the FBI includes “thousands, if not millions” of documents protected by the attorney-client privilege, including communications with Trump and with other Cohen clients not involved in the investigations. They also invoked the work-product privilege, which protects material prepared by a lawyer in the course of legal representation.
Prosecutors argued in their own filing Friday that the investigation of Cohen focuses on his private business dealings and that evidence uncovered so far indicates Cohen has done “little to no legal work.” They want the separate group of prosecutors, or a so-called taint team, to review the seized documents to weed out any that might be covered by the privilege. The privilege doesn’t cover communications in furtherance of a crime.
In their filing on Sunday night, Trump’s lawyers said a taint team won’t be fair to the president. Prosecutors “already pre-judged the matter of privilege, repeatedly urging that few privileged documents are likely to be found,” according to the filing. The “disinclination” to find privilege is “a bias that virtually guarantees that there will not be a fair privilege review of the seized materials.”
The president’s representatives want the documents first turned over to Cohen’s lawyers, who in turn would allow Trump and his attorneys to review them before prosecutors see them.
“The lodestar is fairness, not speed,” Hendon wrote.
Prosecutors in New York haven’t identified what specifically they’re probing, although they said in a court filing that “the crimes being investigated involve acts of concealment by Cohen.’’ The Washington Post has said prosecutors are investigating possible wire fraud, bank fraud and campaign finance violations.
In a courtroom sure to be standing-room-only, Cohen will encounter the adult-film actress Stormy Daniels. She is suing Trump and Cohen to void a non-disclosure agreement she signed with a company set up by Cohen just before the election. Trump has denied having had a relationship with Daniels and said he didn’t know where Cohen got the money. Cohen says he paid the money on his own and wasn’t reimbursed.
Cohen’s lawyer has said that Mueller referred some of the evidence uncovered in his investigation to prosecutors in New York. After the FBI raid on Cohen, Trump stepped up his criticism of Mueller. His spokeswoman, Sarah Sanders, told reporters that the president has the authority to fire Mueller on his own.
The regulations that created the special counsel position say that only the attorney general or his designee can fire the special counsel and only for good cause, such as misconduct, conflict of interest or a violation of Justice Department policies.
Wood, the judge in the case, was famously nominated for U.S. attorney general by President Bill Clinton in 1993, only to have her nomination withdrawn over revelations that she had employed an undocumented worker.
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