Judge Kimba Wood Considers Special Master

U.S. District Judge Kimba Wood rejected President Trump’s request to unilaterally determine what material seized last week from his personal lawyer, Michael Cohen, is privileged. However, she may appoint a Special Master in the form of an outside attorney or retired judge to assess the records in an effort to carefully navigate the case, and asked each side for four names. Under Federal Rule 53, consent is not necessary. Subsection (a)(1) provides that non-consensual referrals may be justified by exceptional conditions that cannot be addressed effectively and timely by an available District Judge or Magistrate Judge. Notwithstanding Article III of the U.S. Constitution, non-consensual referrals to Special Masters have been sustained against constitutional attack where duties were performed under the total control and jurisdiction of the District Court. Lawyers for Cohen and Trump argued the seizure could lead to violations of attorney-client privilege. The investigation of Cohen, pitting the President against his own Justice Department, took another unexpected turn today with the courtroom revelation that one of Cohen’s legal clients was Fox News commentator, Sean Hannity. In considering appointing a Special Master, Judge Wood commented that it was not because of legal precedent, but in the interest of avoiding the appearance of bias in the politically charged case. Judge Wood said she wanted more information before ruling. Reportedly, to address concerns about “fairness” raised by Trump and Cohen’s attorneys, she said “a Special Master might have a role here. Maybe not the complete role, but some role.” It is unusual but not unprecedented for criminal investigators to seize documents from a lawyer, and there is a policy in place designed to shield information covered by attorney-client privilege using a “taint team” to review all the material and separate what is covered by the privilege. A lawyer’s communications with a client are not covered by the privilege if they did not involve legal advice or were used to further a crime or fraud. Judge Wood asked the government to make digital copies of all the material it had seized and share those files with Cohen’s lawyers, who would in turn share relevant information with lawyers for Trump. The goal, Judge Wood said, would be to have a sense of how much work would be required of a Special Master and, therefore, how long that process might take. Cohen, who is under criminal investigation for possible bank fraud and campaign finance violations, has come under scrutiny by federal prosecutors for his efforts to tamp down negative stories about Trump. In late 2016, he paid porn star Stormy Daniels $130,000 in exchange for her agreement not to discuss an alleged sexual encounter with Trump. Last week, it was revealed that Cohen had helped RNC Finance Chair, Elliott Broidy, negotiate a $1.6 million settlement with a former Playboy model who got pregnant after they had an affair. See full article here-- https://wapo.st/2HDe3qz