- Associated Press - Tuesday, April 17, 2018

NEW YORK (AP) - FBI raids on the office and residence of President Donald Trump’s personal lawyer have raised thorny questions about attorney-client privilege, and the ability of the attorney, Michael Cohen, to keep communications with his high-powered clients private. Already, one Cohen client has complained that his privacy has been violated. Fox News host Sean Hannity said he was wrongly dragged into the case when a judge forced Cohen’s lawyers to reveal the names of his recent clients on Monday. Interviews with legal experts provide some clarity on the still-evolving privacy dispute overseen by U.S. District Judge Kimba Wood.

Q: Why is the FBI investigating Cohen?

A: Prosecutors say they are investigating Cohen’s “personal business dealings,” but haven’t been more specific. People familiar with the investigation have told The Associated Press that the raids on Cohen sought bank records, records on his dealings in the taxi industry, his communications with the Trump campaign and any information on payments made in 2016 to two women who say they had affairs with Trump, a former Playboy model, Karen McDougal, and porn actress Stormy Daniels.

Q: What will be done to protect the confidentiality of communications between Cohen and his clients?

A: The U.S. attorney’s office in Manhattan, which is conducting the investigation, wants a “taint team” of Justice Department lawyers walled off from criminal investigators to decide which of the seized records might be subject to attorney-client privilege. Lawyers for Trump and Cohen say they want a role in identifying records that should be off limits to investigators. Cohen’s lawyers say they don’t trust the Justice Department and have suggested the appointment of a neutral lawyer called a special master to review the seized material. Doing so, they say, will help the public view the politically charged investigation as fair.

Q: What happens next?

A: The judge says the taint team can catalog what was captured in the raid and turn over copies to Cohen’s lawyers before criminal prosecutors see them. She said she may appoint a special master, but wants the process to proceed quickly. Prosecutors say they can begin giving Cohen’s lawyers substantial quantities of materials in about 10 days. The judge said: “I have faith in the Southern District U.S. Attorney’s Office that their integrity is unimpeachable.”

Q: How is Sean Hannity involved?

A: So far, there has been no indication that Hannity has anything to do with the criminal investigation. His name arose only because a judge asked Cohen to identify his current clients, as part of the process of figuring out who was entitled to attorney-client privilege.

“As part of the hearing, the court understandably needed to have a list of the affected clients,” said George Washington University law professor Jonathan Turley.

Cohen’s attorneys had asked the judge if they could keep Hannity’s name to themselves, or maybe give it to the judge privately, saying the client had no connection to the probe and deserved privacy. The judge, after hearing from an attorney for news organizations, said the name should be public.

Q: Could Hannity get dragged into the criminal investigation?

A: “We don’t know enough about it,” said Glen Kopp, a former federal prosecutor now in private practice. “Maybe it’s really nothing. But say, for example, if it is a situation in which Cohen played the role of paying off a woman to silence her in a relationship with Hannity. That could be relevant to a criminal investigation of whether Cohen was corrupting the legal process for lawyers representing women in these situations.”

Hannity has emphatically denied any such scenario. He said he merely asked Cohen for legal advice, mostly about real estate matters.

Q: Are Hannity’s interactions with Cohen covered by attorney-client privilege?

A: It depends, said Kopp. “Even if you have an engagement letter and an existing attorney-client relationship between an attorney and a client, that doesn’t mean all your communications are privileged. Even if you don’t have a formal retainer or engagement or haven’t been paid, it doesn’t mean the communications won’t be privileged,” he said. “The actual communications and the context in which they occurred would need to be reviewed.”

Q: Should Trump be pleased that the judge appears to be taking steps to ensure his attorney-client privilege is protected?

A: None of this is good news for the president, said Turley. “The good news is that the court did refer to a party being ‘unimpeachable.’ The bad news is that she was referring to the prosecutors.”

Q: From a pure journalism ethics point of view, should Hannity have disclosed to his Fox viewers that Cohen was his lawyer?

A: “Of course he should have,” said Todd Gitlin, a professor of journalism and sociology at Columbia University. Hannity, on his broadcasts, had sharply criticized the FBI’s raids on Cohen. Viewers should have been told, Gitlin said, that they had a personal connection. “A serious person who has a relationship of some significance with somebody he’s talking about on television should say as much, and let people judge how much they want to trust Sean Hannity.”


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