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OpEdNews Op Eds    H2'ed 4/16/18

Prosecutors to court: Trump's arguments against reviewing potential criminal evidence are absurd

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By Rebecca Pilar Buckwalter Poza
Daily Kos Staff

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The U.S. Attorney's Office for the Southern District of New York has just submitted a filing that eviscerates President Trump, legally speaking.

The USAO-SDNY's letter on Monday was a response to Trump's effort to back personal attorney Michael Cohen's desperate bid for a temporary restraining order. Both Cohen and Trump want to block federal investigators from reviewing the fruits of expansive searches executed against Cohen's offices, electronics, and hotel room last Monday. Judge Kimba Wood granted Trump's motion to join Cohen's suit against the United States as an "intervenor," or other party with interests involved, on Friday.

"The President's letter (the 'Letter') makes substantially the same arguments already made by Cohen, and does not -- and cannot -- justify the relief he seeks: namely, to block the government from carrying out a judicially-approved search, and for the President and his counsel to themselves act as a privilege screen for all materials lawfully seized by the government from Cohen's premises that 'relate [to the President] in any way.' Granting such relief would mark a serious departure from the accepted, normal practices of this District and erect an unprecedented and unwarranted obstacle to the government's ability to investigate attorneys for their own conduct, in this case or any other.

"[T]he Court should permit the USAO-SDNY to review the evidence lawfully seized pursuant to judicially-authorized search warrants, consistent with a rigorous Filter Team protocol that is common practice in this District."

USAO-SDNY then walks through a set of solid objections to Trump's efforts.

"First, despite the Court's invitation to the President to make 'any arguments that are different from those made by Mr. Cohen,' he has not done so. The closest the President comes to making a new argument is his assertion that the cases cited by the USAO-SDNY are distinguishable because none involves documents seized 'pursuant to a search of a lawyer's office [where] the privilege-holder objects to a taint team procedure.' That is an immaterial distinction."

"Immaterial distinction" = fighting words.

"None of the cases cited by the President attaches any significance to whether it is the privilege-holder or his attorney asserting an objection. That is unsurprising, because, as the Court recognized at Friday's hearing, '[i]t appears to me that the [President's] interests are completely parallel with those of Mr. Cohen.' The President has offered no reason why that would be different here, where Cohen has asserted the privilege on his behalf."

The only thing Trump and Cohen don't agree on is Cohen's notion that a "special master," or single person, could be given the task of reviewing seized materials.

The USAO letter pointedly notes that Trump is arguing for a solution -- his lawyers get to review the documents before anyone else -- that doesn't exist in law or precedent.

[D]espite advancing the extreme position that he should review the lawfully-obtained files in the first instance, the President still cannot identify a single case in which a court has ordered such a remedy, and for good reason--the President's proposal would set a dangerous precedent.

As Michael Avenetti pointed out on Twitter, if that proposal seems familiar it could be because it's a throwback to the last time a president got in trouble over recordings. Avenetti, of course, is representing Stormy Daniels in her suit against Cohen to invalidate the non-disclosure agreement Cohen negotiated to prevent her from discussing her alleged affair with Trump.

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