Quote (Santara @ Apr 18 2018 11:12am)

Are you just now learning about stingray devices?

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4. Outing Sean Hannity
The worst aspect of yesterday’s hearing was the revelation that Cohen claims Sean Hannity as one of his clients. I say this as a proud SDNY alum who has assured people that the Cohen investigation is surely not political, and as a longtime admirer of Kimba Wood, who is a very solid federal judge.

Full disclosure: I have had friendly relations with Sean for many years. I haven’t been on his shows in many moons and the direction in which he’s taken them during the Trump era is not my cup of tea. But he has been nothing but kind to me personally, and I appreciate that.

The A-C privilege exists because we want to encourage people to seek legal advice in resolving disputes, even though discussing one’s problems can entail risk — lost opportunity, embarrassment, incrimination, etc. And while people may assume the worst (or, in the media’s case, report the worst assumptions) when they learn someone has sought legal counsel, it is most often done for mundane, wholly legitimate reasons — a real-estate transaction, drafting a will, setting up a trust account, structuring a business, complying with complex regulatory regimes, and so on.

While A-C communications are privileged, the same cannot be said either for the fact that an A-C relationship exists or for any attendant fee arrangement. Nevertheless, these matters are sensitive.

When, for whatever reason, these matters become relevant to a criminal investigation, the common practice is for prosecutors to issue a grand-jury subpoena, directing the lawyer to identify clients or fee arrangements. Grand-jury proceedings are secret. In this manner, the government can proceed with its investigation but the lawyer’s clients are not publicly embarrassed or slimed with innuendo. Moreover, the client can be given notice and an opportunity to be heard by the court, in order to make any argument he may have against being identified, particularly to the public.

Ultimately, if the target of the investigation is prosecuted and a third-party’s A-C relationship has some bearing on the case, that relationship could eventually become public (in the indictment, the pretrial motions, the trial, or the plea proceedings). But unless and until that happens, a third party’s A-C relationship — which may have utterly no bearing on the matters under criminal investigation — is nobody’s business and should remain confidential.

Because Cohen is making a legal claim that the government should not be able to use evidence it has seized, it is his burden to establish that there were A-C relationships and that seized items traceable to those relationships are privileged. Plainly, then, Cohen needs to show that he has clients. Nevertheless, there was no reason at this stage for the identities of those clients to be revealed publicly.

Moreover, the A-C privilege belongs to the client, not the attorney. The law is supposed to protect the client, not indulge the lawyer. While the press has made this seem nefarious, lawyers — and especially lawyers who’ve gotten crosswise with the law — never want to reveal the identities of their clients. It was no big deal to disclose the names of Trump and Broidy; they have publicly acknowledged A-C relationships with Cohen (and indeed, Trump was joining Cohen in his motion before the court). It was wrong, however, to reveal Hannity’s name. There were easy ways to give the government the information needed to help identify potentially privileged materials absent publicly disclosing Cohen’s client roster. Judge Wood could have directed that Hannity’s name be given to prosecutors but permitted Hannity an opportunity to argue that his name be kept out of the public record during the grand-jury investigation.

That being the case, it is difficult to see what happened in court as anything other than a gratuitous shot at Hannity, which Trump partisans will naturally take as a sign that the investigation is political. The unnecessary disclosure put Hannity in the position of having to explain himself publicly, to assure people that he is not involved in embarrassing or criminal episodes for which he needed to retain a “fixer.” (In fact, he explains that he and Cohen may have had informal legal discussions but never a formal A-C relationship.)

I am not weighing in here on journalistic ethics. I don’t know whether Hannity’s relationship with Cohen, whatever its nature, obliged him to disclose the relationship to his audience before launching his highly partisan coverage of the raid on Cohen’s premises. It seems to me that Sean makes no bones about being a Trump advocate rather than an objective journalist, so I don’t know what his duties are — though I doubt anyone would be surprised to learn he has close relationships with people in Trump’s orbit.

Regardless of whether he should have outed himself, it was inappropriate for the court to order him outed as a Cohen client. I think the SDNY and Judge Wood will come to regret that things were done this way (certainly, the SDNY wants to continue arguing for confidentiality when it suits the government’s investigative interests). And I’m confident that the media would be reporting with umbrage rather than glee if a liberal commentator were needlessly outed as the client of a lawyer under criminal investigation.

Quote (Goomshill @ Apr 18 2018 11:56am)

in particular;

Quote (thesnipa @ Apr 18 2018 12:00pm)

the Tl;dr of all of this is that a fine toothed comb will likely remove most of the evidence that was seized from the prosecutor's reach. but given the leaks and issues we have with keeping secrets we may be seeing it in the public eye regardless. My guess is, just like with the seizures of HRC's stuff, 99.99% of it isn't incriminating. but with a data dump comes the tinfoil hats and who knows what type of pizzagate nonsense this could spawn. Especially now that infowars has a foot out the door. I personally think it's possible that Trump get impeached for something minor because his public opinion falls so low that it's seen as acceptable.

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The central issue in Monday’s hearing was whether there was some procedure better than the one the government wants to follow. Judge Wood denied a proposal by Cohen and Joanna Hendon, a private lawyer for the president, that the seized materials be surrendered to Cohen so that he and Trump’s counsel could go through them and sort out claimed A-C-privileged materials before the government’s taint team got a peek.

Thus, the usual procedure for this unusual situation will be observed — the taint team will work with Cohen and Trump’s lawyers to identify privileged documents along with any other lawyer work that is not pertinent to the criminal investigation. Judge Wood will probably appoint a special master to facilitate this process. The team of prosecutors and FBI agents working on the Cohen probe will get access to relevant, non-privileged items only after this process runs its course.

It seems to me, though, that this ship has already sailed. The government was already poring over Cohen’s emails before the raids. Therefore, the likelihood is that (a) there was already a procedure in place to protect the A-C privilege, (b) prosecutors have amassed a strong showing that Cohen is not very actively engaged in the practice of law, and (c) the emails and other evidence investigators had gathered were used as part of the probable-cause showing to justify the search warrants that were executed last week.

As the probe proceeds, attention will turn to whatever safeguards have been in place over the last few months to guard against breach of potential A-C communications in Cohen’s emails. Plainly relevant to that question is: For what precisely is Cohen under investigation? If it is his own activities that have little relation to the practice of law, A-C communications will be of little concern. Similarly important: Were Cohen’s actions on behalf of purported clients truly in the nature of legal representation — as opposed to actions that have nothing to do with legal representation?

Quote (IceMage @ Apr 18 2018 01:11pm)

I thought the other stuff was more insightful, but that's definitely the section the Trump cult will focus on.

Quote (EndlessSky @ Apr 18 2018 09:15am)

So... he is a lawyer... and he was in contact with clients about legal advice... but its not considered practicing "law"

You bitches are so desperate :rofl:

Quote (IceMage @ Apr 18 2018 11:11am)

I thought the other stuff was more insightful, but that's definitely the section the Trump cult will focus on.

Quote (Goomshill @ Apr 18 2018 01:21pm)

The rest of it was largely speculative, I'm not sure how much insight he can provide from outside the box. He just repeats the same things I've heard from all the other coverage- The investigation has clearly been going on months, we don't know what its about exactly, that it can't be just campaign finance violations because that's far too trivial, how relevant can his limited capacity as a lawyer vs fixer really be, etc etc.
He devoted the largest chunk of his text to excoriating Judge Wood for outing Hannity and barely remembering to dress it up in niceties and presumption of good faith. And even then he doesn't find any grounds to speculate how the Hannity outing could be explained as impartial. "That being the case, it is difficult to see what happened in court as anything other than a gratuitous shot at Hannity, which Trump partisans will naturally take as a sign that the investigation is political". Well if there's no real explanation for it as anything but a political low-blow, then those Trump partisans are reading it correctly.

Quote (EndlessSky @ Apr 18 2018 11:31am)

I apologize in advance for our cult being mad at liers lying