Trump Lawyer’s Fate Hinges on 32-Year-Old Corruption Fighter
(Bloomberg) -- The high-wattage cases that go through the Manhattan U.S. attorney’s office have catapulted legal careers. Some lawyers have become household names after starting their careers there targeting drug dealers, gangsters and con artists -- think Comey, Giuliani or Bharara.
Now, a 32-year-old assistant U.S. attorney, Thomas McKay, is leading the criminal investigation of President Donald Trump’s longtime personal lawyer, in what could prove to be the office’s most explosive case in years. In the process, McKay could garner as many headlines as his famous predecessors.
The circumstances surrounding the U.S. investigation of the lawyer, Michael Cohen, are extraordinary even by the standards of the Manhattan office -- an FBI raid of Cohen’s home and office, the president fighting in court to keep his own Justice Department from reviewing seized evidence, a hush payment to a porn actress.
And it’s all happening in the shadow of a sweeping probe into whether Trump’s campaign helped Russia disrupt the election.
It’s rare for federal agents to seize an attorney’s records, and unprecedented to take those of a president’s personal lawyer. That’s set off a courtroom skirmish, to resume on Thursday, over the fairest way to review the evidence for materials protected by attorney-client privilege.
Trump, in an interview on “Fox and Friends” early Thursday, acknowledged for the first time that Cohen “represents me with this crazy Stormy Daniels deal,” referring to the adult-film actress who claims she had a tryst with him. Cohen “did absolutely nothing wrong,” he said.
In court, McKay has not shied from publicly castigating Trump, the most powerful man in America -- and, through many layers of management, his ultimate boss.
“Both Mr. Cohen and President Trump made inflammatory public statements about this case,” McKay said during a hearing last week. “It is improper for the parties to a litigation to attempt to drum up media attention about the case, and then turn around and cite the media attention” as the basis for blocking the investigation.
“Just because he has a powerful client,” McKay added of Cohen, “doesn’t mean he’s entitled to different treatment.”
On Thursday, lawyers for Trump, Cohen and the Trump Organization will answer the judge’s questions about how they would quickly review the Cohen documents before they’re given to investigators. She also wants to discuss how the lawyers would help a potential independent attorney determine which records were privileged, if she were to appoint one.
McKay burnished his reputation as part of the team that won a corruption conviction against a top New York lawmaker, though that case is heading for a retrial. He is the youngest of four under-40 prosecutors examining Cohen’s financial dealings -- including whether the payment to an adult film star to buy her silence about an alleged fling with Trump violated campaign finance laws.
The prosecutors’ boss, U.S. Attorney Geoffrey Berman, has recused himself from the Cohen case for unspecified reasons. But Attorney General Jeff Sessions, who drew Trump’s ire by recusing himself from the special counsel’s probe, hasn’t stepped aside from the Cohen matter and may take briefings on it.
That leaves McKay and three colleagues -- Rachel Maimin, Nicolas Roos and Andrea Griswold -- in day-to-day control of the investigation, reporting to Robert Khuzami, Berman’s deputy.
The Cohen investigation poses legal risks for the president, whose association with Cohen has forced the matter into public view at an early stage when it would ordinarily remain secret.
“It is hard enough to litigate how an investigation was conducted after it is over,” said Kan Nawaday, a former member of the office’s public corruption unit. “But given the overt nature of a search warrant, the extreme public scrutiny, and the fact that it was executed during an ongoing investigation, you are fighting on multiple continents on very complex legal issues.”
McKay and the other prosecutors largely followed a well-worn path to the New York office: graduation from an elite law school, clerkships with U.S. judges and stints as a junior associate at a top law firm. They are relative newcomers to the office’s public corruption unit -- among the most high-profile in the office.
Maimin, 38, is the most senior member of the team, having joined the office in 2010 after a stint at New York’s Paul, Weiss, Rifkind, Wharton & Garrison LLP. She’s spent most of her time prosecuting drug and violent crime cases and only recently joined the public corruption unit.
Roos, 33, is also new to the team after handling drug prosecutions. He joined the office in 2016 after graduating from Stanford Law School two years earlier and working briefly as an associate at Quinn Emanuel Urquhart & Sullivan LLP, a Los Angeles-based firm that specializes in trial work.
Late Wednesday, Griswold, a 37-year-old veteran of the securities fraud unit, was added to the case. She’s a 2008 graduate of the New York University School of Law.
So far, McKay has done all the talking for the government in court. Of the four, he has the longest tenure in the unit, having served in a specialized role that tried one of the office’s most high-profile corruption cases in recent years -- the prosecution of Dean Skelos, the former majority leader of the New York state senate.
Skelos’s conviction was overturned after the U.S. Supreme Court narrowed the definition of public corruption. His retrial is scheduled for June 18.
McKay was hired directly after clerkships for federal judges in New York and on the Washington, D.C., appeals court. He graduated from Princeton University, where he played on the squash team, and Georgetown Law School, where he was an editor at the American Criminal Law Review.
McKay’s early work as a prosecutor was typical of the assignments handed to fresh hires. One case involved a U.S. Postal Service employee who swindled a program to provide Christmas gifts for underprivileged children; she pleaded guilty and was sentenced to probation. In another, he was part of a team that prosecuted a New York City police officer with a side gig as a drug dealer. The officer got 20 years in prison after a guilty plea.
Though the precise contours of the Cohen investigation remain unclear, hearings and court filings have laid bare some of its focus -- and make clear that Cohen is under intense scrutiny.
The investigation was referred to the Manhattan prosecutors by Special Counsel Robert Mueller, who is overseeing a probe into Russian meddling in the 2016 election. It had been going on for months before the April 9 raids of Cohen’s home and office and involved court-approved surveillance of Cohen’s email accounts, according to court filings.
Prosecutors have said they’re more focused on Cohen’s personal business and financial dealings than his legal work. Investigators from the FBI’s New York office seized about 10 boxes of documents from Cohen’s hotel room, office and apartment, and duplicated hard drives from computers and other electronic devices. They also took several mobile phones.
Lawyers are now awaiting a decision by U.S. District Judge Kimba Wood on whether she will appoint a so-called special master to review the evidence for attorney-client privilege issues before prosecutors can begin examining it.
“This case has an incredible amount of scrutiny and the stakes are very high,” said Paul Krieger, a former head of the complex frauds unit who left last fall to form a firm with two fellow prosecutors. But every unit takes on cases “that are high pressure, intensely scrutinized, high stakes and bring up issues that haven’t been dealt with before.”
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