The judge ordered Cohen's lawyers to provide a list of his clients by Monday and ordered Cohen to appear personally Monday at a separate hearing set for Monday on potentially privileged documents related to Trump. The Wall St. Journal reports:
U.S. District Judge Kimba Wood ordered Mr. Cohen’s legal team to produce by Monday morning a list of both his clients and his own lawyers with whom he has attorney-client privilege. She ordered them to substantiate through retainers or other proof that the individuals are, in fact, Mr. Cohen’s clients.
Judge Wood also ordered Mr. Cohen himself to show up for a separate hearing Monday that will specifically discuss privileged documents pertaining to Mr. Trump.
I wonder if Judge Wood would have ordered Cohen to produce a list of his clients if he was a criminal defense lawyer. I know that fee payments are not privileged, but I also think there could be situations where merely identifying a client could be the last link in a chain of incriminating evidence that could lead to their Indictment.
The pleadings also confirm Donald Trump doesn't use email. I remember during the Apprentice there were news articles that his secretary printed out his emails and he dictated his responses. I wonder if it's an attention span issue or a refusal to learn how type using 8 fingers instead of just the two thumbs needed for Twitter. (James Comey in his book confirms Trump has small hands.)
Michael Cohen is objecting to the Government's use of a taint team (aka filter team) to first go through what was seized and pull out any information that might be subject to privilege and only turn over the remainder to criminal case agents and prosecutors. His lawyers think they should be the taint team, and be able to go through the material first, and then pass on what they don't think is privileged or subject to the search warrant to the Government. The Government says there is absolutely no legal support for such a proposition.
The Government wrote in a letter to Cohen's attorney that the filter team is already in place. As to who is on it, the Government says in their opposition brief to Cohen's motion for restraining order:
The Filter Team is composed of AUSAs who have had, and will have, no involvement in the investigation. The Filter Team is prohibited from disclosing, directly or indirectly, the substance of any material under its review to the Investigative Team, unless and until the Filter Team has determined that the material is not privileged.
I don't think a taint team composed of prosecutors is much different than no taint team at all. So I get why Cohen is objecting to one. But I also think the law is not on his side.
The Government mentions the "crime fraud" exception to the attorney client privilege several times in its brief. (shorthand for when the client and lawyer are engaged in criminal activity together). It will either seek consent of the privilege holder or permission from the court to examine the documents. Interestingly, the Government claims Cohen has only one client -- Trump -- so who else would the exception pertain to?
Cohen claims that the seized materials contain privileged documents relating to communications with President Trump and other clients. That suggestion, though, as noted above, is undermined by the fact that Cohen apparently rarely emailed with President Trump, and has identified no other clients with whom he has an attorney-client relationship.
In other parts of its brief, the Government refers to the third party disclosure exception to the attorney-client privilege. That would be where the client discusses matters with his attorney in the presence of third parties. In Cohen's case, that would be where Trump and Cohen discussed something that would be confidential except that Trump allowed a third party to be present or authorized Cohen to discuss it with someone else.
Will Cohen fall on his sword for Trump? From media reports, it sounds like Cohen's not in the best financial shape. It may be that some third party benefactor is paying his legal fees, or that Trump Org. has insurance which will pay his fees. If he's paying for them himself, I suspect he'll re-assess his "stand up" position as the well begins to go dry.