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President Donald Trump and lawyer Michael Cohen on Friday asked a California federal judge to stay a lawsuit filed by Stephanie Clifford, aka Stormy Daniels, because the men believe it could implicate Cohen’s Fifth Amendment rights amid a pending criminal investigation.
Cohen’s Manhattan office was raided by the FBI on Monday, under a warrant that also extended to his residence, hotel room and safety deposit box. While the exact nature of the agency’s investigation remains unclear, the attorney has asked the court to “have all seized items be made available to Mr. Cohen’s counsel to conduct a review of the documents in the first instance and produce to the government all responsive, non-privileged items.”
It has been widely reported that among the targets are communications regarding payments made to Clifford and ex-Playboy model Karen McDougal, both of whom allegedly had affairs with Trump and signed nondisclosure agreements prior to the 2016 election. Both Clifford and McDougal have sued in an effort to free themselves from the contracts.
In a filing in support of his request, Cohen asked the court to issue a temporary restraining order that would keep the government from reviewing the seized materials until it rules on his request.
“The documents seized by the government are uniquely sensitive because they contain documents relating to privileged communications between the President of the United States and his personal lawyer,” states the filing. “The retention of such privileged information from the President presents not only routine attorney-client privilege and attorney work product issues, but also creates constitutional concerns regarding officers of the Executive Branch rummaging through the private and privileged papers of the President.”
In a filing opposing the TRO, the government argues that there’s no precedent for such a request and that Cohen has “exceedingly few clients and a low volume of potentially privileged communications.” The filing goes as far as to question whether Cohen actually has any clients other than Trump.
“To be sure, searches of premises belonging to an attorney raise special concerns, which impose a need for heightened care, due to the fact that such premises may contain privileged material,” states the filing. “But there can be no dispute that attorneys, like anyone else, may be criminally investigated for their conduct.”
Furthermore, the government argues that the searches are the result of a monthslong investigation and seek evidence related to crimes that, in some cases, have nothing to do with his work as a lawyer. It says a “filter team” from the U.S. Attorney’s Office is perfectly capable of evaluating whether any of the evidence seized implicates Cohen’s attorney-client privilege.
U.S. District Court Judge Kimba Wood delayed a hearing on the matter until Monday and ordered Cohen to appear in person and provide a list of his clients. Wood on Friday also granted Trump’s request to intervene in the matter.
In the Clifford case, Cohen and Trump on Friday filed a joint application requesting a 90-day stay of the action. (Read it below.)
“Defendants will be substantially prejudiced if compelled to proceed with this case while the criminal investigation related to Mr. Cohen is ongoing, given the substantial overlap between the facts in this action and the criminal investigation, and Mr. Cohen’s status as a key witness,” states the filing by attorneys Brent Blakely and Charles Harder. “Furthermore, public interest is best served by ensuring this action does not interfere with the criminal investigation.”
Clifford on Monday filed an opposition to the request, arguing Cohen presented no evidence that the facts of her case and any criminal investigation overlap and, even if they did, that doesn’t necessarily justify a stay.
“[E]ven if Mr. Cohen’s Fifth Amendment rights were implicated, they have been waived,” writes attorney Michael Avenatti. “He has filed two separate declarations in this case addressing the facts – with one of them being filed after the FBI raids. This is in addition to the myriad public statements issued by Mr. Cohen, including a phone interview with Don Lemon of CNN occurring the day after the raids.” (Read the opposition here.)
Avenatti also suggests that Cohen could address his concerns by asserting his Fifth Amendment rights on a question by question basis during his deposition, and that testimony combined with Trump’s and that of other witnesses and documents could form a sufficient defense.
The already complex legal battle could soon see another layer of litigation, as former Clifford attorney Keith Davidson has threatened to sue following reports that Cohen recorded their phone conversations without his knowledge.
April 16, 1:00 p.m. Updated with Clifford’s opposition to Cohen’s request for a stay.