Michael Cohen Becomes Major Distraction for Trump

and on Bloomberg dot com Slash Podcasts. Advantage federal prosecutors In a high stakes court battle between President Trump and his own Justice Department, New York Federal Judge Kimba Wood rejected Trump's request to get exclusive access to evidence seized by the FBI last week from his longtime personal lawyer

Michael Cohen. The judge did not make a final decision, but one decision she made led to the biggest revelation in the hearing one of Cohen's three clients with Seawan Hannity, the Fox News commentator who's a Trump supporter and for the last week has denounced the count Cohen raids, joining me as former federal prosecutor Robert Mint's a partner at

McCarter and English Bob. Usually, in a case involving evidence that might involve uch communications between an attorney and a client, a separate team of prosecutors that's been called a taint team reviews the evidence. First, why should the president be treated any differently than anyone else at this stage of the investigation. Well, at this point, we don't know whether

that actually will happen. The judge has not made a final decision on how she intends to handle this review as to whether the documents that were taken during the search of Mr Khan's office will we're actually privileged or not. Uh, And so what the judges said is she is considering either the the traditional form of review, which, as you say, is a taint team of federal prosecutor who are unrelated to the investigation, who will review the information to call

out anything that would be considered attorney client privilege. Or the possibility is also that she will appoint an independent lawyer, something called a special master, someone who doesn't work for the Department of Justice, who will review the records to try to call out any attorney client privileged information. And

I think she did. She's doing this not because she has any concerns about the impartiality or the integrity of the prosecutors in the Southern District of New York, but she recognizes that appearance of any kind of unfairness is going to be closely scrutinized given the high profile nature of this case. She did say I have faith in the Southern District U. S. Attorney's office, and their integrity

is unimpeachable. Is that any kind of a message to Trump, who has made it a practice to denigrade federal judges and the Justice Department. Well, I think she's certainly setting a clear signal that she is not buying into any arguments that prosecutors have been corrupted in any way or that there is some kind of political bias that is

motivating this investigation. But on the other hand, she is sensitive to the fact that this is going to be very closely watched and she wants to be concerned about not only the actual bias, but appearance of bias. And I think in the end, it's likely that we'll see a special Master play at least some role in the course of this document review. Bob explain what they do when they go through these documents. And because every lawyer,

every communication between a lawyer and a client is not privileged. No, that's right, and that's an important understanding that just because an attorney is involved in the communication does not render that an attorney client privileged communication. Often attorneys work as business advisors, um they may not be communicating with an individual in the course of seeking legal advice. All of

that would not be privileged. The classic attorney client privileged communication as a situation where an individual provides information to an attorney for the purpose of seeking legal advice, and the question of whether the privileged privilege exists primarily turns on whether the client believes that the information that they are providing is for the purpose of obtaining legal advice, and they believe that it will be treated confidential in

a confidential way by the attorney. The New York Times reported that people in the Trump administrations say that they see Cohen's the inquiry about Cohen as a more serious threat to Trump than the investigation by Special Counsel Robert Mueller. Can you explain why they might see that, Well, it's hard to say, not having any access to the search war an application that the government brought before a federal judge in order to see the records, or certainly no

idea of what might be in those records. But whenever prosecutors get a hold of communications between an attorney and their client, there is it is a very high bar that has to be met, first of all, in order to be given a search, in order to have a search war and granted for that type of search, and you never know what kind of information might be found there.

It suggests from the outset that they certainly believe that there is a possibility that Mr Cohen might be involved in some kind of criminal activity, and given his close relationship with President Trump, there is certainly speculation that this could pose a serious threat to President Trump. I want to turn to to Sean Hanny for a moment. He later released a statement saying Cohen had never represented me in any matter, although they occasionally had brief discussions about

legal questions that he assumed. We're confidential now, so can you I know you don't know this for a fact, But why was he then listed as a client by Cohen? Well, that's a good question. There's been some contradictory statements about the relationship between Sean Hannity and Michael Cohen. Michael Cohen only had three legal law clients in the in the last eighteen months, so it's not like he's got a

list of many clients. He obviously was operating uh much as a business advisor and not a thing as a lawyer, and most of his interactions he identified um Mr Handy as a client. And the reason he did so is that when the U. S. Attorney's Office paint team, or whether the Special Master is ultimately brought in here is going through those communications. The first thing that the court wants to know is who are the clients. So when they see a communication, for example, between Mr Bob, we've

gotta we've got to stop there. But I'm sure we'll be picking up with this discussion again. That's Robert Mints, a partner at McCarter in English. A busy day for the Supreme Court as it handed down decisions in several cases and heard oral arguments in one of the high profile cases of the term. Joining us is Bloomberg, Supreme Court reporter of Greg's store. So Greg, let's start with news about Justice Sonia Sotomayor. She broke her right soul

shoulder in a fall at her Washington home yesterday. Why she had oral arguments today? She was at the oral argument today and yesterdays. UM had her fact apparently before they had gotten diagnosis that it was indeed broken. Um, she looked like she might have had a sling on underneath her robe. The Supreme Court says that she'll she'll have a sling on for several weeks. Um, but otherwise

seemed to be functioning as normal. And we should note that she is diabetic and in January, emergency medical personnel treated her at her home for symptoms of low blood sugar. So, and let's let's turn to what the court actually did today. In a loss for the Trump administration, the court throughout a provision in federal immigration law that made it easier to deport immigrants who have been convicted of crimes. By a vote of five to four. What was the reasoning

of the majority there? Yes, So, so this has to do with people who have committed a crime and a definition that says, if you've been convicted of a crime of violence, Uh, it's it's a little bit easier to deport you. Um. And the question for the court and what the majority found was whether the majority found that this provision was so vague that it's unconstitutional. Uh, it's

the case. The court actually heard arguments and twice the Trump administration has inherited the position of the Obama administration trying to defend this provision. But last term, when the Court only had eight justices, they couldn't come up with a five justice majority, so they re rehearded this term with the Trump administration defending the law. It turns out unsuccessfully,

and Neil Gorcich was actually the decisive vote here. He agreed with the liberal justices in that five to four decision. The Court also dropped a high profile case which pitied the Justice Department against Microsoft in a class over digital privacy and international law. Why was that case dropped? Yes, this was dropped because it was interpreting law that Congress later updated. They updated it as part of part of that omnibus spending bill that got attention for all sorts

of other reasons. UH, and in it it clarified the rules for when U. S law enforcement officials are trying to get data that is held by a US computer company or some other type of telecom company being held on an overseas server. The case before the court involved UH Microsoft emails that are being held in UH stored in Ireland. The question was whether the Justice Department could

get access to those emails. The new law says that in this sort of situation, generally the US can get access to those emails, but there are new provisions that let both the tech companies and the foreign governments object if there's some sort of problem. That's an easy way

to decide a case. When it's decided for you. Let's talk about this high profile case that we spoke about a little bit yesterday over whether states can start collecting billions of dollars in sales taxes from internet retailers that don't currently charge tax to their customers. Could you get a read on how the justices were leaning? It was tough, Jude.

I have to tell you a lot of us went in there thinking there was a really good chance the Court was going to overturn president and free states to tax internet reads are required internet retailers to collect sales taxes regardless of whether they have a store warehouse in

the state. Um the South Dakota, which is trying to overturn that ruling, started with a three nothing advantage because you have three justices who have already said that they want to let states do this, And it was pretty clear today to me at least, that they picked up Justice Ruth Bader Ginsburg. The question is whether they picked up that fifth vote or not. And and there it was a lot harder, harder to tell. You had a lot of justices who were asking questions of both sides,

and tell me about it. Seemed as if there was an unusual coalition Justices Sonya Soto Mayor and Samuel Alito. Tell me about what they were asking. Yes, so, so the two of them seemed to be the most reluctant to overturn that president UM Justice So Mayor UH asked the first several questions in the case of the South Dakota lawyer, and she essentially said, um, you know, your

problem isn't with this ruling, which is called quill. Your problem is that you need a mechanism to um to to get the consumers who actually owe this tax to pay it. So you need to find a method for uh for um UH for collecting it from get getting them to collect it. So she seemed like a vote to to leave the quill president intact. Later on, just as Alito joined as well. I believe all his questions

were asked of South Dakota, not on the other side. Certainly, he was very seemed very reluctant to jump into this fray and and change the status quo, Well, what about Justice Roberts as far as the Conservatives where they might be able to pick up a vote, Yeah, so he is was tough to read. He asked questions of both sides a couple of times. He asked the lawyer for South Dakota and the Trump administration, which is which is on South Dakota's side, whether there was some sort of

minimum require meant for economic contact with a state. So South South Dakota says, our law only applies you only have to collect taxes if you make a certain amount of sales in the state. And anyone to know is that constitutionally or required that there be some sort of minimum amount of sales? And neither South Dakota nor the Trump administration was willing to say, yes, there is a constitutional minimum, or at least not a clear constitutional minimum.

Not clear to me what the Chief Justice is going to do with that? That answer, Uh, he seems to be a vote, a vote that could go either way at this point. And how Brier It's some arguments this term has been camouflaging, is his or at least asking questions so much of both sides. How Howard did Briar and um and Kagan react Yes, I would say Briar was sort of camouflaged in plain sight, as he does sometimes.

He essentially told people what his problem was, which is that, um, there are a lot of factual problems here that one side says, oh, alliance with with state taxation will be really really hard for small retailers. The other side says, oh, actually, you get the software. It takes care of everything. And he basically said, I don't know what what the right answer to that is, and UM, I don't know how

I'm going to figure that out. And it's the kind of thing that Congress we have much better equipped for for dealing with. Now, it's important that you know, regardless how this case comes out, Congress could essentially overturn what the Court does. This is not an area where the court gets the final word. UM so uh, the question is kind of what the Court's gonna create as the

default rule. What's going to be the rule going forward unless Congress, which of course has some trouble passing legislation. Unless Congress passes UH legislation to deal with us. So, Greg, we've only a minute here. I'm gonna ask you a big question. You know you're there all the time. So we see this, you know, from time to time, and it seems as if there might be some unusual alliances forming a different of these arguments. Um, is that true

or is it basically still liberals versus the Conservatives. Well, so this case today involves something called the dormant commerce cause, and that is an area where it comma defies ideological uh description. So that's not that much of a surprise. The Gorsets. The first case we talked about today with the deportation case with Gorset's joined the liberals, was definitely noteworthy. Um,

and that's something to watch going forward. Um that there might be occasions when he sort of goes against type and votes with the liberals. Well, it's always nice to seem see crossing of those lines anyway, Thanks so much, Greg. As always, that's Bloomberg Supreme Court Report at Greg's store, and he'll be of course following the arguments again tomorrow. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud

and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg. Yeah,