Michael Cohen’s attorneys, and therefore Michael Cohen, had a pretty bad day in court. But their lack of a win in Judge Kimba Wood‘s chambers on Monday afternoon doesn’t begin to compare to the humiliation suffered by President Donald Trump‘s personal attorney and, by extension, Donald Trump himself.
Here are their (combined) top ten fails.
1. What’s in a name if you work for Fox News?
First there was the issue of Michael Cohen’s super top secret client. After a series of specious and non-legal arguments, followed by a series of ignominious defeats on each argument, Cohen’s attorneys were forced to publicly reveal the name of their client’s client. It was none other than that paragon of non-Boy Meets World Seans: Sean Hannity. (Note: at this point, almost everyone in the court room laughed.) For a full rundown of how this own goal occurred, see Law&Crime‘s coverage here.
2. Does your client even have time for this?
Trump’s lawyer Joanna Hendon can easily be explained. The way she states, re-states, belabors her point and eventually squanders all argumentative capital is stunningly Trumpian. The president must have seen his own press conferences glistening in his latest attorney’s eyes. Through the course of all this unnecessary verbiage, Hendon finally managed to clarify her client’s request. She said,
We are seeking a Temporary Restraining Order and a Preliminary Injunction prohibiting the government from reviewing the documents until: my client, President Trump, and Mr. Cohen have copies of the documents in their possession; until Mr. Cohen provides President Trump with a list of relevant information and privileged documents; and until President Trump can personally review them.
To which Woods replied, “How long could your client devote to this task?” When pressed on this, Hendon hemmed and hawed on continuous playback mode. On at least three separate occasions, Judge Wood asked whether or not President Trump could plausibly sit down with his attorneys and preview every Trump-related document in the way they had requested–and if so, how long that might take. Hendon was entirely non-committal and couldn’t offer any specificity.
To be sure, Hendon’s answers were very careful and precise–typical lawyer speak. But Judge Wood seemed to be pushing for anything that would have been helpful in making a decision. Instead, Hendon basically said that as long as the court does everything exactly the way we want to do it, Mr. Trump will behave and respond in the time and manner the court requests.
When that didn’t work, Hendon waxed philosophical about the attorney-client privilege and a potential miscarriage of justice. Judge Wood was patient. She reiterated the time question. Again, Hendon refused to commit, leading to some protracted sighing in the court room. Ultimately, Hendon’s mixture of pro forma replies and defendants’ rights rhetoric was unhelpful to her client’s cause and Wood was unmoved.
3. They basically (totally) lost.
Judge Wood clearly attempted to issue a ruling that would satisfy everyone and no one all at once, but Team Cohen and Team Trump were obviously left the least satisfied by today’s decision.
Let’s be clear: Lawyers for Trump and Cohen argued that the government should take no further part in the initial sorting through the FBI-obtained Cohen documents. Judge Wood completely dismissed this. She noted, “The government must be the entity to log all the documents into the system. The court can’t carve out an exception specific to the president on the issue of attorney-client privilege.”
While no substantive review is being yet allowed, Team Cohen will have to work with–and rely upon–the prosecution as the number of documents and potential privilege issues are worked through. Effectively, this means government agents do get their hands on the documents “first”–but will have to provide them to Cohen’s attorneys on a rolling basis and essentially work in tandem with Cohen’s team to determine the final form of privilege review–which is shaping up to be some combination of “taint team” and special master.
4. Only the best people.
After the prosecution argued that Cohen and Trump would likely assert over-broad privilege claims if given first crack at the documents, Cohen attorney Todd Harrison responded by saying, “We’re not bad people.” Judge Wood replied:
It’s not that you’re not good people, it’s that you’ve mis-cited the law on occasion.
Ouch.
5. An extremely silly citation.
Cohen’s attorneys quickly abandoned the strategy of citing legal precedent. It was a hard slog because the only case brought up Monday by Cohen, et, al. was effortlessly used against them by the prosecution. (Again, see Law&Crime‘s earlier Hannity piece for more on this.) Instead, Cohen’s team went heavy on the public policy arguments–a good idea. Until Cohen lawyer Harrison went off on a tangent about how the “stakes are too high” in this situation for the court to rule in the government’s favor. He said, citing a “poll” no one in the world aside from Harrison appears to be aware of:
Fifty percent of the country thinks it’s a great idea. Fifty percent of the country thinks it’s unfair.
This prompted another pithy response from Wood. She said, “I think you’re overstating your problem.”
6. Death by 1,000 corrections.
At one point, while proposing a potential “prioritization” method to determine the privilege (or lack thereof) of the various documents, Cohen attorney Steve Ryan noted that this particular set of circumstances has never happened in the history of the United States. His voice rising, he angrily denounced the prosecution’s position, saying, “The documents are going to be reviewed by the government–whether taint team or trial team.” Woods interjected to correct Ryan. She said, “A trial team would never do the [privilege] determination.”
7. Death by 1,001 corrections.
Cohen attorney Todd Harrison said:
America is looking to the court to act as a separate and co-equal branch. There is a fight here between the executive and the legislative branch.
To which the prosecution’s Thomas McKay replied:
This isn’t a fight between branches of government.
8. Death by 1,003 corrections.
On at least two occasions, Cohen’s attorneys brought up the public policy argument that political discourse related to the Trump and Cohen cases had simply become too “toxic” for the government to be relied upon for the initial privilege determination. A bit of a non sequitur but such is the way American lawyers are trained.
On each occasion, prosecutors gently reminded Judge Wood that while whining about “toxic partisan politics,” Cohen’s team immediately went to the press to slam the government and “argue for the appointment of a special master.”
9. Underlying arguments denied.
Lawyers for Trump and Cohen repeatedly stopped just short of making their actual argument: that the government simply cannot be trusted to review the Cohen documents before Trump and/or Cohen. Judge Wood ultimately declared, “I have faith in the honor and the integrity of the Southern District of New York’s attorney’s office. A taint team is a viable option. Due to the perception of fairness–not actual fairness, but the perception of fairness–a special master might have a role here.”
10. Some unanswered emphasis.
After a bit of back-and-forth between the prosecution and Cohen’s attorneys, an exasperated McKay said, “Michael Cohen might have a legal degree, but this investigation has to do with his personal and financial relationships.”
Cohen’s team never had a good response.
[Image via Yana Paskova/Getty Images]
Follow Colin Kalmbacher on Twitter: @colinkalmbacher
This is an opinion piece. The views expressed in this article are those of just the author.
