The documents, taken from Cohen's office, apartment and a hotel room, were part of an FBI raid conducted to gather information as part of a criminal investigation into Cohen's business dealings, according to the Justice Department.
One of the president’s attorneys has asked the judge to give the president copies of all of Cohen's seized materials so that the attorney could identify any materials that involved Trump. Once they established that the material involved dealings for Trump, the attorney argued, they could then determine what material would be deemed “privileged.”
Cohen filed a temporary restraining order last week to stop investigators from reviewing the material.
The hearing is set for 2 p.m. Monday in Manhattan. Federal Judge Kimba Wood is presiding.
What is privileged material and why are the president’s attorneys in court Monday? Here’s a look at what led to the hearing.
What's happened to get to the hearing on Monday
- The Washington Post has reported that Cohen is being investigated for bank and wire fraud.
- Last week, FBI agents raided Cohen's home, office and safe deposit box. They seized papers and electronic material.
- According to Cohen's attorney, investigators in the federal prosecutors office for the Southern District of New York City were informed by Justice Department special counsel Robert Mueller that Cohen arranged for a payment of $130,000 to Daniels in exchange for Daniels' silence about an affair with Trump.
- Daniels has filed suit to get out of the agreement, claiming it was voided because Trump did not sign the agreement document.
- Trump says he knew nothing about the agreement, that it was something Cohen did on his own.
Who are the players
- Cohen – Trump's long-time attorney was ordered by the judge to appear at the hearing to answer questions about who his clients are.
- Trump – It's communications with Cohen that Trump is looking to protect.
- Joana Hendon – Trump's attorney.
- Stormy Daniels – Daniels, whose real name is Stephanie Clifford, is an adult movie star who claims she had an affair with Trump in 2006, and that Cohen paid her $130,000 in "hush money" prior to the 2016 presidential election.
- Michael Avenatti – Daniels' attorney. Avenatti told The Washington Post he would be there because, "We want to maintain or ensure that the integrity of the documents, whatever was seized, is maintained."
- Todd Harrison – One of Cohen's attorneys.
- Attorneys from the United States Attorney's Office for the Southern District of New York – They are prosecuting the case.
What is this hearing for?
In short Trump wants to review material seized from his personal lawyer before federal investigators review the material.
The president and Cohen are arguing that they want to be allowed to review documents that in relate to the president in any way. They want to review the documents to protect attorney-client privilege, according to a letter filed with the court on Sunday night.
What are some of the items that the President does not want the feds to see? We don't know pic.twitter.com/83X9WeyzeX
— Jamie Dupree (@jamiedupree) April 16, 2018
The Justice Department is arguing that there is no need for Cohen and Trump to see the material because they have created a “clean team,” separate from anything to do with the case, to review the material.
The job of the “clean team” is to review and separate if necessary material that could compromise attorney-client privilege.
What does attorney-client privilege mean and how does it apply here?
Attorney-client privilege means a person has a right not to disclose, and prevent others from disclosing, communications between himself and his attorney.
The privilege is asserted when a person is served with a legal demand for the material.
In this case, material has been collected from Cohen’s home and office, and Cohen and the president (his client), are saying they need to see the material to determine if it falls under the attorney-client privilege.
According to USA Today, Joanna Hendon, one of Trump’s lawyers, filed papers late Sunday asking that prosecutors be blocked from reviewing material seized in the raid until Cohen and Trump can review the material.
"Fairness and justice — as well as the appearance of fairness and justice — require that, before they are turned over to the Investigative team, the seized materials relating to the President must be reviewed by the only person who is truly motivated to ensure that the privilege is properly invoked and applied: the privilege-holder himself, the president," Hendon wrote.
Attorney-client privilege is different from executive privilege. Executive privilege applies to the president of the United States and is rooted in the Article II, section 2 of the Constitution. Executive privilege means that some conversations with the president are protected from discovery by others.
The U.S. Supreme Court ruled in United States v Richard Nixon, that the executive privilege is not absolute.
Who are his clients?
The judge has asked that Cohen provide a list of his clients, something Cohen’s lawyers say they shouldn’t have to turn over.
According to a court filing, Cohen worked for three clients providing legal advice during 2017 and 2018 – GOP fundraiser Elliott Broidy, Trump, and a third party who asked not to be named. Cohen represented Broidy when he had an extramarital affair.
What about the Stormy factor?
Daniels and her lawyer, Avenatti, will be in court Monday, Avenatti sad over the weekend. Avenatti told The Washington Post why he thought it was important for him to be there last week.
“We want to maintain or ensure that the integrity of the documents, whatever was seized, is maintained,” he said.
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