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After Raid, Cohen Tries To Limit What Records Prosecutors May Review

Apr 16, 2018
Originally published on April 16, 2018 9:13 am
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RACHEL MARTIN, HOST:

President Trump's personal lawyer, Michael Cohen, couldn't stop the FBI from raiding his office and taking documents last week. But now he is trying to limit how much of this information federal prosecutors can actually see. Cohen has a hearing this afternoon, where he will make his case. For more, we turn to Kim Wehle. She's a former assistant U.S. attorney who served on the Whitewater investigation. She is with us in our studios this morning. Thanks so much for coming in.

KIM WEHLE: Thanks for having me.

MARTIN: Can you outline exactly what Michael Cohen is arguing here?

WEHLE: So first of all, to be clear, this is not part of a criminal proceeding. This is a separate civil action essentially attempting to inject himself into the investigative process. He's saying, listen, we cannot trust the Justice Department to properly review documents for which there might be a privilege claim. I need to be able to have that opportunity in advance of any prosecutor who is investigating me, looking at it. Or alternatively, a special master should be appointed.

MARTIN: Is that a reasonable request, considering the client in question is the president of the United States?

WEHLE: I do think that there's a chance that because the president is involved that the judge is going to take extraordinary measures to make sure that this process was properly implemented. On the other hand, there are a lot of reasons why the judge might be really careful about giving him the relief he's requesting, particularly the relief that he personally and his lawyers review these materials because there are already a number of measures in place. In particular, the government has agreed to, through its taint team, produce any documents for Mr. Cohen and get a judicial ruling on whether they're privileged before those documents go to the actual investigative team. So there is a process in place to make sure that courts are weighing in on the propriety of the privilege claims.

Essentially, Mr. Cohen wants the first bite at the apple, not a bite at the apple after DOJ's taint team. And remember, the taint team is sort of walled off from the prosecutorial team, the idea being, we are neutral. We're going to look at this steely-eyed to make sure nothing in here is actually privileged without an exception. And if we're concerned about that, that's going to go to Cohen in the court before the investigative team sees it. Cohen's saying, listen, I want to see it first.

MARTIN: Huh. The president also wants to see it first.

WEHLE: Yeah. The president filed a separate letter with the court last night. And in that letter, it looks like president's lawyers are not agreeing to a special master as a third alternative, which I think would be the most probably that they would get here. The president's saying, in a manner, I think, inconsistent with his own Justice Department, that the president personally gets the ability to make a determination as to whether something's privileged and whether the president or a court makes that determination, either way, if it is privileged then it does not go to the investigative team.

MARTIN: But is that a regular request - that the client, essentially, in question here would ask permission to view the documentation?

WEHLE: No. This is highly, highly unusual. I mean, remember, the attorney-client privilege is not a constitutional right. We're not talking about the Fourth Amendment. There's no claim that there's a problem with the warrant, at least for now. I mean, if Mr. Cohen were charged, there might be a claim that the warrant was unlawfully issued. There is no Sixth Amendment right to a fair jury trial that's at issue here. Here this is a common law doctrine that's essentially designed to make sure people feel comfortable talking to the lawyers. If we talked - if I were to talk to a lawyer, knowing that everything I say could be turned over to an opponent, the idea is we just won't talk to lawyers. And that's bad for everybody.

So the question, really, is whether Judge Wood's going to determine, is there enough in place to make sure privileged documents aren't getting into the investigative team's hands? And as a matter of protocol, they're jumping through a lot of hoops to make sure that that process is protected, and that determination is made in a fair way. So this relief really is extraordinary.

MARTIN: In your gut, do you believe, as the president has argued, that there is some kind of prosecutorial overreach happening here?

WEHLE: I haven't seen any evidence of that. I mean, the Justice Department has followed the procedures that are in place. Of course, we don't know as the public - from the public standpoint - what kind of information the Southern District of New York has with respect to Mr. Cohen. And that will really make the determination as to whether the extraordinary steps taken here were consistent with the need for extraordinary steps.

MARTIN: Former U.S. Attorney Kim Wehle joining us in our studios. Thank you so much.

WEHLE: Thank you. Transcript provided by NPR, Copyright NPR.