A lawyer with the American Civil Liberties Union sided with President Trump’s personal lawyer Michael Cohen on Tuesday, saying a judge should allow a neutral party to review the documents the FBI seized from Cohen’s office.
ACLU lawyer Brett Max Kaufman agreed with Cohen’s lawyers in a blog post that it makes no sense for the government itself to decide which files it can keep and use in an attempt to prosecute Cohen and which files it should ignore.
“Such files should be reviewed in the first instance by a neutral party, or ‘special master,’ appointed by and answerable to the court, to ensure that the prosecutors and investigators get the evidence they are authorized to look for,” Kaufman wrote. “They should not be allowed to roam widely through digital files that may contain terrabytes of private information.”
“A special master — or, perhaps, a magistrate judge — appointed by a neutral district court judge would ensure that an independent party plays the role of filter, and that the actual search is strictly limited by the bounds of the warrant,” he added.
The ACLU blog post came out a day after Harvard law professor emeritus Alan Dershowitz accused the ACLU of being a “hard-left” organization that was choosing not to defend Trump even though it would normally defend someone in his position.
A special master is exactly what Cohen’s team is asking for, and it’s the question that federal Judge Kimba Wood is expected to decide this week.
Wood did not approve or deny any requests Tuesday, according to multiple reports, but instead ordered both sides to return and tell her how much of the materials sized will be covered by attorney-client privilege. She is expected to rule later this week.
Meanwhile, federal prosecutors are pushing for a “taint team,” or a group of independent prosecutors not part of the Cohen case, to review the materials. They wrote in a Monday submission that it makes no sense to go as far as Trump wants, which is to let him review which materials can be used and which cannot.
“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,” the Justice Department said.
“Under the President’s theory, every person who has communicated with a lawyer would be given the power to turn every search warrant into a subpoena and to demand the return of lawfully-seized evidence in order to undertake their own review of the evidence. Such a rule is unworkable and ripe for abuse,” it added.
Cohen’s law office, home, and New York City hotel room were raided on April 9 pursuant to a federal search warrant obtained by the U.S. Attorney’s Office for the Southern District of New York. The FBI obtained the warrant following a referral from special counsel Robert Mueller, and the warrant was approved by Deputy Attorney General Rod Rosenstein, who oversees Mueller.
Seized documents include emails, tax records, business records, and other materials related to Cohen’s payment to adult film actress Stormy Daniels — who claims she had an affair with Trump in 2006 — as well as “details on his relationship with the Trump campaign and his efforts to suppress negative information about Mr. Trump,” the New York Times reported.
