Federal prosecutors and attorneys for Michael Cohen on Wednesday suggested seven candidates who could be picked by a federal judge to review materials seized in an FBI raid of Cohen’s home and office last week and determine if any should be protected under attorney-client privilege.
Attorneys for Donald Trump and Cohen, the president's personal lawyer, wanted to decide themselves which materials, seized as possible evidence in a criminal investigation by the Manhattan U.S. attorney's office, should be shielded from federal prosecutors' view. Prosecutors, on the other hand, wanted to use a special team of investigators, who would be walled off from the team pursuing Cohen, to examine the materials and decide what qualifies for attorney-client privilege.
Federal Judge Kimba Wood said Monday that she would consider a third option, appointing a "special master" who could review the documents independently, and she asked both sides to suggest people who could take on the task.
The U.S. attorney's office suggested three candidates, who are all former magistrate judges from New York: Frank Maas and Theodore Katz, who are now affiliated with for-profit mediation and arbitration firm Judicial Arbitration and Mediation Services, and James C. Francis IV, who is currently a lecturer at CUNY Law School.
All "have many years of experience in resolving disputes on the issue of privilege in the context of criminal investigations,” the U.S. attorney’s office said in its filing.
Cohen’s attorneys suggested four options, all former prosecutors with the Manhattan U.S. attorney's office: Bart Schwartz of Guidepost Solutions; Joan McPhee, an attorney at Ropes & Gray; Tai Park of Park Jensen Bennett and George S. Canellos of Milbank, Tweed, Hadley & McCloy.
Former federal prosecutors told POLITICO Cohen’s team likely intended to appeal to Wood by suggesting members of the tight-knit club of former and current employees of U.S. attorney’s office for the Southern District of New York.
Bart Schwartz, a former head of the criminal division in the U.S. attorney’s office, has a lengthy track record of conducting internal audits or acting as an independent monitor. In 2016, Gov. Andrew Cuomo appointed him to conduct an investigation into his own upstate economic development program, after news broke that then-U.S. Attorney Preet Bharara's office was investigating the program. Prosecutors also appointed Schwartz to review General Motors in 2015 and Deutsche Bank AG in 2010, and Bharara’s office approved his hiring to monitor SAC Capital Advisors LP in 2014.
In 2000, then-New York City mayor Rudy Giuliani appointed Schwartz to lead a task force to suggest ways to overhaul the city’s Buildings Department, after allegations of systemic corruption.
Norm Eisen of Citizens for Responsibility and Ethics in Washington, a group that has dogged Trump over various ethical issues, said Schwartz would be a good choice.
“He has bipartisan cred,” Eisen said.
Prosecutors were still cool to the special master option Wednesday. In a court filing, acting U.S. Attorney Robert Khuzami said the office continues to believe a “special master is not warranted to review the seized materials for privilege and that a Government Filter Team would fairly and most efficiently accomplish this task.”
Khuzami argued a team tapped by the prosecutors could begin its review this month, while a special master might not be able to begin work until June.
Federal prosecutors also said they expect to begin handing over copies of all the documents and other material they seized to Cohen and his attorneys starting April 27, with plans to finish handing over most of the material by May 11, with the exception of several cell phones, which are locked and likely have to be decrypted by experts at FBI’s headquarters in Quantico, Virginia.
Josh Gerstein contributed to this report.