WEBVTT - Michael Cohen Becomes Major Distraction for Trump

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com Slash Podcasts. Advantage federal prosecutors

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<v Speaker 1>In a high stakes court battle between President Trump and

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<v Speaker 1>his own Justice Department, New York Federal Judge Kimba Wood

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<v Speaker 1>rejected Trump's request to get exclusive access to evidence seized

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<v Speaker 1>by the FBI last week from his longtime personal lawyer

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<v Speaker 1>Michael Cohen. The judge did not make a final decision,

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<v Speaker 1>but one decision she made led to the biggest revelation

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<v Speaker 1>in the hearing one of Cohen's three clients with Seawan Hannity,

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<v Speaker 1>the Fox News commentator who's a Trump supporter and for

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<v Speaker 1>the last week has denounced the count Cohen raids, joining

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<v Speaker 1>me as former federal prosecutor Robert Mint's a partner at

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<v Speaker 1>McCarter and English Bob. Usually, in a case involving evidence

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<v Speaker 1>that might involve uch communications between an attorney and a client,

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<v Speaker 1>a separate team of prosecutors that's been called a taint

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<v Speaker 1>team reviews the evidence. First, why should the president be

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<v Speaker 1>treated any differently than anyone else at this stage of

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<v Speaker 1>the investigation. Well, at this point, we don't know whether

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<v Speaker 1>that actually will happen. The judge has not made a

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<v Speaker 1>final decision on how she intends to handle this review

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<v Speaker 1>as to whether the documents that were taken during the

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<v Speaker 1>search of Mr Khan's office will we're actually privileged or not. Uh,

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<v Speaker 1>And so what the judges said is she is considering

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<v Speaker 1>either the the traditional form of review, which, as you say,

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<v Speaker 1>is a taint team of federal prosecutor who are unrelated

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<v Speaker 1>to the investigation, who will review the information to call

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<v Speaker 1>out anything that would be considered attorney client privilege. Or

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<v Speaker 1>the possibility is also that she will appoint an independent lawyer,

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<v Speaker 1>something called a special master, someone who doesn't work for

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<v Speaker 1>the Department of Justice, who will review the records to

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<v Speaker 1>try to call out any attorney client privileged information. And

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<v Speaker 1>I think she did. She's doing this not because she

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<v Speaker 1>has any concerns about the impartiality or the integrity of

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<v Speaker 1>the prosecutors in the Southern District of New York, but

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<v Speaker 1>she recognizes that appearance of any kind of unfairness is

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<v Speaker 1>going to be closely scrutinized given the high profile nature

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<v Speaker 1>of this case. She did say I have faith in

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<v Speaker 1>the Southern District U. S. Attorney's office, and their integrity

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<v Speaker 1>is unimpeachable. Is that any kind of a message to Trump,

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<v Speaker 1>who has made it a practice to denigrade federal judges

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<v Speaker 1>and the Justice Department. Well, I think she's certainly setting

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<v Speaker 1>a clear signal that she is not buying into any

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<v Speaker 1>arguments that prosecutors have been corrupted in any way or

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<v Speaker 1>that there is some kind of political bias that is

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<v Speaker 1>motivating this investigation. But on the other hand, she is

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<v Speaker 1>sensitive to the fact that this is going to be

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<v Speaker 1>very closely watched and she wants to be concerned about

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<v Speaker 1>not only the actual bias, but appearance of bias. And

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<v Speaker 1>I think in the end, it's likely that we'll see

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<v Speaker 1>a special Master play at least some role in the

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<v Speaker 1>course of this document review. Bob explain what they do

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<v Speaker 1>when they go through these documents. And because every lawyer,

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<v Speaker 1>every communication between a lawyer and a client is not privileged. No,

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<v Speaker 1>that's right, and that's an important understanding that just because

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<v Speaker 1>an attorney is involved in the communication does not render

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<v Speaker 1>that an attorney client privileged communication. Often attorneys work as

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<v Speaker 1>business advisors, um they may not be communicating with an

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<v Speaker 1>individual in the course of seeking legal advice. All of

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<v Speaker 1>that would not be privileged. The classic attorney client privileged

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<v Speaker 1>communication as a situation where an individual provides information to

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<v Speaker 1>an attorney for the purpose of seeking legal advice, and

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<v Speaker 1>the question of whether the privileged privilege exists primarily turns

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<v Speaker 1>on whether the client believes that the information that they

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<v Speaker 1>are providing is for the purpose of obtaining legal advice,

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<v Speaker 1>and they believe that it will be treated confidential in

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<v Speaker 1>a confidential way by the attorney. The New York Times

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<v Speaker 1>reported that people in the Trump administrations say that they

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<v Speaker 1>see Cohen's the inquiry about Cohen as a more serious

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<v Speaker 1>threat to Trump than the investigation by Special Counsel Robert Mueller.

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<v Speaker 1>Can you explain why they might see that, Well, it's

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<v Speaker 1>hard to say, not having any access to the search

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<v Speaker 1>war an application that the government brought before a federal

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<v Speaker 1>judge in order to see the records, or certainly no

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<v Speaker 1>idea of what might be in those records. But whenever

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<v Speaker 1>prosecutors get a hold of communications between an attorney and

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<v Speaker 1>their client, there is it is a very high bar

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<v Speaker 1>that has to be met, first of all, in order

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<v Speaker 1>to be given a search, in order to have a

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<v Speaker 1>search war and granted for that type of search, and

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<v Speaker 1>you never know what kind of information might be found there.

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<v Speaker 1>It suggests from the outset that they certainly believe that

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<v Speaker 1>there is a possibility that Mr Cohen might be involved

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<v Speaker 1>in some kind of criminal activity, and given his close

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<v Speaker 1>relationship with President Trump, there is certainly speculation that this

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<v Speaker 1>could pose a serious threat to President Trump. I want

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<v Speaker 1>to turn to to Sean Hanny for a moment. He

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<v Speaker 1>later released a statement saying Cohen had never represented me

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<v Speaker 1>in any matter, although they occasionally had brief discussions about

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<v Speaker 1>legal questions that he assumed. We're confidential now, so can

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<v Speaker 1>you I know you don't know this for a fact,

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<v Speaker 1>But why was he then listed as a client by Cohen? Well,

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<v Speaker 1>that's a good question. There's been some contradictory statements about

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<v Speaker 1>the relationship between Sean Hannity and Michael Cohen. Michael Cohen

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<v Speaker 1>only had three legal law clients in the in the

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<v Speaker 1>last eighteen months, so it's not like he's got a

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<v Speaker 1>list of many clients. He obviously was operating uh much

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<v Speaker 1>as a business advisor and not a thing as a lawyer,

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<v Speaker 1>and most of his interactions he identified um Mr Handy

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<v Speaker 1>as a client. And the reason he did so is

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<v Speaker 1>that when the U. S. Attorney's Office paint team, or

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<v Speaker 1>whether the Special Master is ultimately brought in here is

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<v Speaker 1>going through those communications. The first thing that the court

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<v Speaker 1>wants to know is who are the clients. So when

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<v Speaker 1>they see a communication, for example, between Mr Bob, we've

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<v Speaker 1>gotta we've got to stop there. But I'm sure we'll

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<v Speaker 1>be picking up with this discussion again. That's Robert Mints,

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<v Speaker 1>a partner at McCarter in English. A busy day for

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<v Speaker 1>the Supreme Court as it handed down decisions in several

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<v Speaker 1>cases and heard oral arguments in one of the high

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<v Speaker 1>profile cases of the term. Joining us is Bloomberg, Supreme

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<v Speaker 1>Court reporter of Greg's store. So Greg, let's start with

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<v Speaker 1>news about Justice Sonia Sotomayor. She broke her right soul

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<v Speaker 1>shoulder in a fall at her Washington home yesterday. Why

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<v Speaker 1>she had oral arguments today? She was at the oral

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<v Speaker 1>argument today and yesterdays. UM had her fact apparently before

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<v Speaker 1>they had gotten diagnosis that it was indeed broken. Um,

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<v Speaker 1>she looked like she might have had a sling on

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<v Speaker 1>underneath her robe. The Supreme Court says that she'll she'll

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<v Speaker 1>have a sling on for several weeks. Um, but otherwise

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<v Speaker 1>seemed to be functioning as normal. And we should note

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<v Speaker 1>that she is diabetic and in January, emergency medical personnel

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<v Speaker 1>treated her at her home for symptoms of low blood sugar. So,

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<v Speaker 1>and let's let's turn to what the court actually did today.

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<v Speaker 1>In a loss for the Trump administration, the court throughout

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<v Speaker 1>a provision in federal immigration law that made it easier

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<v Speaker 1>to deport immigrants who have been convicted of crimes. By

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<v Speaker 1>a vote of five to four. What was the reasoning

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<v Speaker 1>of the majority there? Yes, So, so this has to

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<v Speaker 1>do with people who have committed a crime and a

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<v Speaker 1>definition that says, if you've been convicted of a crime

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<v Speaker 1>of violence, Uh, it's it's a little bit easier to

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<v Speaker 1>deport you. Um. And the question for the court and

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<v Speaker 1>what the majority found was whether the majority found that

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<v Speaker 1>this provision was so vague that it's unconstitutional. Uh, it's

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<v Speaker 1>the case. The court actually heard arguments and twice the

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<v Speaker 1>Trump administration has inherited the position of the Obama administration

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<v Speaker 1>trying to defend this provision. But last term, when the

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<v Speaker 1>Court only had eight justices, they couldn't come up with

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<v Speaker 1>a five justice majority, so they re rehearded this term

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<v Speaker 1>with the Trump administration defending the law. It turns out unsuccessfully,

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<v Speaker 1>and Neil Gorcich was actually the decisive vote here. He

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<v Speaker 1>agreed with the liberal justices in that five to four decision.

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<v Speaker 1>The Court also dropped a high profile case which pitied

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<v Speaker 1>the Justice Department against Microsoft in a class over digital

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<v Speaker 1>privacy and international law. Why was that case dropped? Yes,

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<v Speaker 1>this was dropped because it was interpreting law that Congress

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<v Speaker 1>later updated. They updated it as part of part of

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<v Speaker 1>that omnibus spending bill that got attention for all sorts

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<v Speaker 1>of other reasons. UH, and in it it clarified the

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<v Speaker 1>rules for when U. S law enforcement officials are trying

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<v Speaker 1>to get data that is held by a US computer

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<v Speaker 1>company or some other type of telecom company being held

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<v Speaker 1>on an overseas server. The case before the court involved

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<v Speaker 1>UH Microsoft emails that are being held in UH stored

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<v Speaker 1>in Ireland. The question was whether the Justice Department could

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<v Speaker 1>get access to those emails. The new law says that

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<v Speaker 1>in this sort of situation, generally the US can get

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<v Speaker 1>access to those emails, but there are new provisions that

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<v Speaker 1>let both the tech companies and the foreign governments object

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<v Speaker 1>if there's some sort of problem. That's an easy way

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<v Speaker 1>to decide a case. When it's decided for you. Let's

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<v Speaker 1>talk about this high profile case that we spoke about

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<v Speaker 1>a little bit yesterday over whether states can start collecting

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<v Speaker 1>billions of dollars in sales taxes from internet retailers that

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<v Speaker 1>don't currently charge tax to their customers. Could you get

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<v Speaker 1>a read on how the justices were leaning? It was tough, Jude.

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<v Speaker 1>I have to tell you a lot of us went

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<v Speaker 1>in there thinking there was a really good chance the

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<v Speaker 1>Court was going to overturn president and free states to

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<v Speaker 1>tax internet reads are required internet retailers to collect sales

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<v Speaker 1>taxes regardless of whether they have a store warehouse in

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<v Speaker 1>the state. Um the South Dakota, which is trying to

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<v Speaker 1>overturn that ruling, started with a three nothing advantage because

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<v Speaker 1>you have three justices who have already said that they

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<v Speaker 1>want to let states do this, And it was pretty

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<v Speaker 1>clear today to me at least, that they picked up

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<v Speaker 1>Justice Ruth Bader Ginsburg. The question is whether they picked

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<v Speaker 1>up that fifth vote or not. And and there it

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<v Speaker 1>was a lot harder, harder to tell. You had a

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<v Speaker 1>lot of justices who were asking questions of both sides,

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<v Speaker 1>and tell me about it. Seemed as if there was

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<v Speaker 1>an unusual coalition Justices Sonya Soto Mayor and Samuel Alito.

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<v Speaker 1>Tell me about what they were asking. Yes, so, so

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<v Speaker 1>the two of them seemed to be the most reluctant

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<v Speaker 1>to overturn that president UM Justice So Mayor UH asked

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<v Speaker 1>the first several questions in the case of the South

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<v Speaker 1>Dakota lawyer, and she essentially said, um, you know, your

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<v Speaker 1>problem isn't with this ruling, which is called quill. Your

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<v Speaker 1>problem is that you need a mechanism to um to

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<v Speaker 1>to get the consumers who actually owe this tax to

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<v Speaker 1>pay it. So you need to find a method for

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<v Speaker 1>uh for um UH for collecting it from get getting

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<v Speaker 1>them to collect it. So she seemed like a vote

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<v Speaker 1>to to leave the quill president intact. Later on, just

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<v Speaker 1>as Alito joined as well. I believe all his questions

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<v Speaker 1>were asked of South Dakota, not on the other side. Certainly,

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<v Speaker 1>he was very seemed very reluctant to jump into this

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<v Speaker 1>fray and and change the status quo, Well, what about

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<v Speaker 1>Justice Roberts as far as the Conservatives where they might

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<v Speaker 1>be able to pick up a vote, Yeah, so he

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<v Speaker 1>is was tough to read. He asked questions of both

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<v Speaker 1>sides a couple of times. He asked the lawyer for

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<v Speaker 1>South Dakota and the Trump administration, which is which is

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<v Speaker 1>on South Dakota's side, whether there was some sort of

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<v Speaker 1>minimum require meant for economic contact with a state. So

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<v Speaker 1>South South Dakota says, our law only applies you only

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<v Speaker 1>have to collect taxes if you make a certain amount

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<v Speaker 1>of sales in the state. And anyone to know is

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<v Speaker 1>that constitutionally or required that there be some sort of

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<v Speaker 1>minimum amount of sales? And neither South Dakota nor the

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<v Speaker 1>Trump administration was willing to say, yes, there is a

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<v Speaker 1>constitutional minimum, or at least not a clear constitutional minimum.

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<v Speaker 1>Not clear to me what the Chief Justice is going

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<v Speaker 1>to do with that? That answer, Uh, he seems to

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<v Speaker 1>be a vote, a vote that could go either way

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<v Speaker 1>at this point. And how Brier It's some arguments this

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<v Speaker 1>term has been camouflaging, is his or at least asking

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<v Speaker 1>questions so much of both sides. How Howard did Briar

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<v Speaker 1>and um and Kagan react Yes, I would say Briar

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<v Speaker 1>was sort of camouflaged in plain sight, as he does sometimes.

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<v Speaker 1>He essentially told people what his problem was, which is that, um,

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<v Speaker 1>there are a lot of factual problems here that one

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<v Speaker 1>side says, oh, alliance with with state taxation will be

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<v Speaker 1>really really hard for small retailers. The other side says, oh, actually,

0:13:06.840 --> 0:13:08.959
<v Speaker 1>you get the software. It takes care of everything. And

0:13:09.040 --> 0:13:11.760
<v Speaker 1>he basically said, I don't know what what the right

0:13:11.800 --> 0:13:15.200
<v Speaker 1>answer to that is, and UM, I don't know how

0:13:15.240 --> 0:13:17.440
<v Speaker 1>I'm going to figure that out. And it's the kind

0:13:17.480 --> 0:13:19.599
<v Speaker 1>of thing that Congress we have much better equipped for

0:13:20.200 --> 0:13:23.400
<v Speaker 1>for dealing with. Now, it's important that you know, regardless

0:13:23.440 --> 0:13:26.959
<v Speaker 1>how this case comes out, Congress could essentially overturn what

0:13:27.080 --> 0:13:29.040
<v Speaker 1>the Court does. This is not an area where the

0:13:29.120 --> 0:13:34.199
<v Speaker 1>court gets the final word. UM so uh, the question

0:13:34.280 --> 0:13:36.199
<v Speaker 1>is kind of what the Court's gonna create as the

0:13:36.280 --> 0:13:39.680
<v Speaker 1>default rule. What's going to be the rule going forward

0:13:39.920 --> 0:13:42.840
<v Speaker 1>unless Congress, which of course has some trouble passing legislation.

0:13:42.960 --> 0:13:47.040
<v Speaker 1>Unless Congress passes UH legislation to deal with us. So, Greg,

0:13:47.240 --> 0:13:48.959
<v Speaker 1>we've only a minute here. I'm gonna ask you a

0:13:49.040 --> 0:13:52.079
<v Speaker 1>big question. You know you're there all the time. So

0:13:52.200 --> 0:13:54.640
<v Speaker 1>we see this, you know, from time to time, and

0:13:54.720 --> 0:13:57.280
<v Speaker 1>it seems as if there might be some unusual alliances

0:13:57.360 --> 0:14:01.200
<v Speaker 1>forming a different of these arguments. Um, is that true

0:14:01.360 --> 0:14:04.720
<v Speaker 1>or is it basically still liberals versus the Conservatives. Well,

0:14:04.800 --> 0:14:08.280
<v Speaker 1>so this case today involves something called the dormant commerce cause,

0:14:08.360 --> 0:14:11.200
<v Speaker 1>and that is an area where it comma defies ideological

0:14:11.920 --> 0:14:15.199
<v Speaker 1>uh description. So that's not that much of a surprise.

0:14:15.440 --> 0:14:17.920
<v Speaker 1>The Gorsets. The first case we talked about today with

0:14:18.000 --> 0:14:22.360
<v Speaker 1>the deportation case with Gorset's joined the liberals, was definitely noteworthy. Um,

0:14:22.720 --> 0:14:25.560
<v Speaker 1>and that's something to watch going forward. Um that there

0:14:25.640 --> 0:14:28.640
<v Speaker 1>might be occasions when he sort of goes against type

0:14:28.720 --> 0:14:31.480
<v Speaker 1>and votes with the liberals. Well, it's always nice to

0:14:31.480 --> 0:14:35.680
<v Speaker 1>seem see crossing of those lines anyway, Thanks so much, Greg.

0:14:36.000 --> 0:14:39.600
<v Speaker 1>As always, that's Bloomberg Supreme Court Report at Greg's store,

0:14:39.760 --> 0:14:43.360
<v Speaker 1>and he'll be of course following the arguments again tomorrow.

0:14:43.640 --> 0:14:46.560
<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

0:14:46.600 --> 0:14:50.320
<v Speaker 1>subscribe and listen to the show on Apple podcast, SoundCloud

0:14:50.440 --> 0:14:54.320
<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brosso.

0:14:54.800 --> 0:14:58.760
<v Speaker 1>This is Bloomberg. Yeah,