Feds conducted 'covert' surveillance on Trump lawyer Michael Cohen email accounts, feared he'd delete records

Key Points
  • Federal prosecutors responded to President Trump's lawyer, Michael Cohen, following his request to receive first access to documents and communications seized in FBI raids on Monday.
  • The prosecutors called Cohen's proposal "unprecedented" and suggested that most of the information seized would not be covered by attorney-client privilege.
  • The prosecutors said in the filing that Cohen's residence, hotel room, office, safety deposit box and electronic devices were all searched by FBI agents on Monday.
Michael Cohen, President Trump's personal lawyer arrives at the Hart Senate Office Building to be interviewed by the Senate Intelligence Committee on September 19, 2017 in Washington, DC.
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Federal prosecutors asked a U.S. District Court judge on Friday to deny a request from President Donald Trump's longtime lawyer, Michael Cohen, that would give his attorneys veto power over what materials seized from Cohen by the FBI could be used by prosecutors.

The prosecutorial filing called Cohen's proposal "extraordinary" and "unprecedented," and contended that Cohen's request for a temporary restraining order was intended "to delay the case" and deprive the prosecutors in the case from viewing the evidence.

The prosecutors also hinted that "the crimes being investigated involve acts of concealment by Cohen" which prompted the U.S. attorney's office to seek and obtain the search warrants.

Lawyers for Cohen did not immediately respond to CNBC's request for comment on the filing.

The filing also offered new information about the "months-long investigation into Cohen" that led to the aggressive searches Monday morning.

The prosecutors said in the filing that Cohen's residence, hotel room, office, safety deposit box and electronic devices were all searched by FBI agents on Monday.

Each of the searches were approved in separate affidavits and "seek evidence of crimes, many of which have nothing to do with his work as an attorney, but rather relate to Cohen's own business dealings." Since the "overwhelming majority" of the evidence seized in the raids relates to Cohen's business work, the prosecutors argued that most of it would not be covered by attorney-client privilege.

Trump had earlier sounded off on the raids in a Twitter message Monday, saying "Attorney-client privilege is dead!"

trump tweet

But the prosecutors say they have already conducted searches of Cohen's email accounts, "covert until this point," which they say "indicate that Cohen is in fact performing little to no legal work, and that zero emails were exchanged with President Trump."

This line of attack extends to a law firm from which Cohen received a $500,000 "strategic alliance fee" each year.

"Based upon conversations with a representative of the law firm," the attorneys said they found that:

"(1) Cohen did not have an email address associated with the firm; (2) Cohen did not have access to the firm's shared drives or document systems—and vice versa; (3) Cohen's documents were to be kept in a locked filing cabinet; and (4) Cohen did not have access to any of the firm's client files."

Counsel for the Trump Organization told the prosecutors that it considers "each and every communication by, between or amongst" Cohen, the organization and its employees to be protected by attorney-client privilege. The U.S. attorneys called that claim "inaccurate and/or overbroad."

They also asked the judge, Kimba Wood, to deny Cohen's request to appoint a so-called special master, instead of a "taint team" of separate federal lawyers, to review whether the seized material is protected by attorney-client privilege.

"Appointment of a special master," the U.S. attorneys say, would "run the risk of creating significant delay in an ongoing criminal investigation."

The prosecutors concluded by attacking the precedent Cohen's argument would set if enacted:

"Cohen's novel proposal would set a dangerous precedent," the filing says. "It would permit subjects or targets of an investigation, who have not yet been indicted, to delay government investigations into their criminal conduct by giving them, and not the government, the authority to make a unilateral determination not only of what is privileged, but also of what is "responsive" to the warrant."

A notable absence

The filing disputed Cohen's initial claims that "thousands" of documents potentially subject to attorney-client privilege were taken during the raids.

Wood asked Cohen's lawyer, Todd Harrison, about the claim in the Friday court hearing.

Harrison was unable to provide evidence for Cohen's claim. "I don't know the exact number," Harrison said. "It might be less than a thousand."

Cohen could not back up his claim either, because he was not there.

Harrison also had trouble producing a list of Cohen's clients requested by the judge. Wood, clearly irritated by Harrison's answers, ordered that Cohen attend the hearing when it reconvenes on Monday.

While Cohen was a no-show at court, The New York Times reported that he did have a phone conversation with Trump on Friday. Two sources familiar with the call told the Times that Trump called to "check in" with Cohen.

Michael Avenatti, attorney for porn star Stormy Daniels, who is suing both men to void a nondisclosure deal barring her from discussing an alleged affair with Trump, said the reported phone call was "highly problematic" in an interview with CNBC.

Avenatti said he didn't believe the conversation would be protected by attorney-client privilege.

As Cohen's corruption investigation moves forward, Trump's advisors have concluded that the case now poses a greater threat to the president than special counsel Robert Mueller's probe into links between the Trump campaign and Russia, several people close to Trump told the New York Times on Friday.

The newspaper reported that Trump struggled to hire a criminal defense attorney to represent him in the case. Indeed, Trump's lawyer in the Cohen case, Joanna Hendon, was retained by Trump only on Wednesday evening — more than two days after the raids occurred.

The New York prosecutors have already sought more information about Cohen's connection to the Trump campaign, the Times reported. Specifically, prosecutors asked for all communications with former Trump advisors Corey Lewandowski and Hope Hicks, two people briefed on the warrants told the Times.

Trump and Cohen's lawyers, caught off guard by the raids, fear that Cohen may not be transparent about the contents of the seized documents, according to the newspaper.