Nearly half of 4,000 Michael Cohen documents are not privileged

Michael Cohen
Michael Cohen.

Brendan McDermid/Reuters

The special master overseeing the document review in the federal criminal investigation of President Donald Trump’s former lawyer Michael Cohen just ruled that nearly half of 4,000 documents seized by the government and labeled as privileged by Cohen, Trump, or the Trump Organization, are not.

And although Cohen objected to the special master’s ruling on a minuscule number of those documents, he isn’t challenging the decision in court.

Because he is not doing so, more than 1,400 documents will now be turned over to prosecutors and are able to be used in a potential prosecution of Cohen.

In a Thursday court filing to US District Judge Kimba Wood, special master Barbara Jones ruled that of 4,085 items recently designated as privileged by Cohen, Trump, or the Trump Organization, just 2,633 are either privileged or partially privileged. The remaining 1,452 were not, she ruled.

Cohen objected to her ruling on 22 of those items, but opted against challenging the ruling to Wood.

Cohen is the focus of a criminal investigation in the Southern District of New York into whether he violated campaign-finance laws, committed bank fraud and/or wire fraud, engaged in illegal lobbying, or participated in other crimes. The FBI raided Cohen’s home, hotel room, and office in April, seizing more than 4 million documents from Trump’s longtime lawyer.

At the center of Cohen’s troubles is a $130,000 hush-money payment he facilitated weeks before the 2016 presidential election to the adult-film actress Stormy Daniels, whose real name is Stephanie Clifford, to keep her from talking about her allegation of a 2006 affair with Trump. The FBI sought documents related to that payment and other similar agreements with women.

Trump, Cohen, and the White House denied that an affair took place. Originally, Cohen said Trump did not reimburse him for the payment. Last month, Trump admitted to paying back his lawyer for the cost.

Right now, the documents obtained by the FBI are the focus of the investigation.

In April, Cohen and his lawyers successfully argued for the appointment of a special master, allowing them, Trump’s attorneys, and the Trump Organization to identify documents protected by attorney-client privilege that could not be used in a potential prosecution. Jones, a retired federal judge, was appointed as the special master to oversee the review and determine which documents labeled by those three parties as privileged are, in fact, privileged.

So far, Cohen has claimed privilege over a tiny fraction of the total number of items obtained by the government, with Jones ruling that an even smaller amount actually are privileged.

Last month, Jones reported that she had reviewed the first 300,000 documents and determined that just 162 were privileged. She disagreed with Cohen, Trump, and the Trump Organization on three, and they did not object to her ruling. Jones later amended her ruling to place one of those 162 documents under her further consideration.

Later in the month, Cohen’s attorneys laid out in a filing that they claimed privilege over more than 12,000 of the documents. Jones’ review of the privilege designations is ongoing.

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