- President Donald Trump and his longtime lawyer, Michael Cohen, are split on the biggest issue in Cohen's case: the appointment of a special master.
- Cohen supports the court appointing a special master, who would have initial review of documents seized in raids on Cohen, while Trump opposes it.
- Trump appears to be distancing himself from Cohen.
President Donald Trump and his longtime lawyer, Michael Cohen, don't see eye to eye on the biggest issue being debated in Cohen's case.
That issue is the appointment of a special master, an outside third party who would initially review the documents seized by the government during the FBI's raids of Cohen's home, office, and hotel room, which were conducted because investigators feared the materials were at risk of being destroyed. The special master would determine what falls under protected attorney-client privilege and what does not and can be used by the prosecution against Cohen.
Cohen and Trump have had a close relationship over the years — with Cohen claiming intense loyalty to the president as a friend and adviser — and Cohen has handled some sensitive matters surrounding Trump, including paying adult-film star Stormy Daniels $130,000 days before the election to keep quiet about an alleged affair.
After initially seeking to have Cohen be the one to review the documents, his attorneys have sought the appointment of such a special master by US District Judge Kimba Wood. At the same time, Trump requested initial review of the documents, brushing back against the appointment of a special master.
The government, meanwhile, is against the appointment of a special master, insisting that what is known as a "taint team" of prosecutors can effectively do the initial document review. The case, they argue, does not present special circumstances that differentiate it from other cases in which a taint team is protocol.
A 'bizarre' conflict
Wood was not warm to Trump's side, saying she's open to the taint team or a special master. Both Cohen's attorneys and federal prosecutors have submitted a list of possible special masters. Observers told Business Insider that the judge was more likely to select one of the government's nominees, which are all retired judges from the Southern District of New York. Cohen's team submitted a group of former federal prosecutors.
But the daylight between Trump and Cohen on this issue struck some as "bizarre."
"It's not bizarre that Cohen is asking for one; it's not bizarre that the US attorney's office is opposing one and saying it's happened under special circumstances and those circumstances aren't here, the thing that Trump's attorney said he wanted is literally unprecedented and that's the only thing they're asking for," Mitchell Epner, a former assistant US attorney for the District of New Jersey and an attorney at Rottenberg Lipman Rich, told Business Insider.
"They're saying either give us that, or we're not taking a position on any of the other things. We think they are all bad."
If Trump would've opted to join Cohen in an application for the special master, Epner thinks Wood would have already granted one. While there is some thought that, if Wood were to grant a special master in this instance, defense attorneys would soon ask for such an appointment any time the government seizes records from an attorney's office, Epner said the circumstances are unique here in that the president is involved.
The fact Trump does not want to go the route of the special master is "really strange," he added.
"It would be surprising to me if Trump's attorney was the cause of that daylight," Epner said of Trump's attorney, Joanna Hendon. "That sounds to me like a client call. If there's an attorney in the background who is advising Trump who is not advising the court, there could be a legal strategy there saying they didn't support the special master if one is appointed and this comes up later."
But "there is also the possibility that you have somebody who doesn't understand how the federal courts work and is pounding on a keyboard like a monkey," he continued.
Cohen and Trump's differences over the special master is indicative of a larger trend of the president and his administration seeking to distance itself from Cohen, who appears to be in a heap of trouble. Earlier this week, White House press secretary Sarah Huckabee Sanders sought to distance the two from each other, saying she believes Trump and Cohen have "still got some ongoing things, but the president has a large number of attorneys."
"This is the classic Trumpian playbook right here," Andrew Wright, a Savannah Law School professor who served as associate counsel to former President Barack Obama and assistant counsel to former Vice President Al Gore, told Business Insider. "You use people with one-way loyalty and the minute they become inconvenient to you, they become discarded. I think that problem of daylight starts with President Trump and his history of turning on people."
Cohen's legal team, he said, is moving to best serve its client.
"Cohen's lawyers are dealing with the art of the possible, and Trump's lawyers are dealing with their client's fantasy," he continued. "So Judge Wood was not headed in this direction."
A special master could significantly slow the review process
Should Wood decide to appoint a special master, observers said it could lead to a slower review process than if the government simply reviewed the documents.
"Anyone who wants a special master is looking for delay," Roland Riopelle, a former federal prosecutor with the US attorneys office for the Southern District of New York and a partner at Sercarz & Riopelle, told Business Insider in an email. "Someone who doesn't is less interested in delay. The master results in a slower review and more opportunities for litigation."
But while most experts thought Trump's argument against the special master was weak, one former federal prosecutor with the US attorney's office for the Southern District of New York said Trump's was actually the most "intellectually honest."
"Trump's position is the analytically sensible one," Steven Feldman, a former assistant US attorney for the Southern District of New York who now works as a defense attorney, told Business Insider. "If you're saying the government shouldn't be looking at my stuff, because it's secret confidential information that I provided or shared in secret, then why would I want some random third party looking at my stuff."
Feldman said he would "love" for the government practice of having a taint team review potentially privileged documents to change.
"It's in some way a legal fiction that your adversary, the government, is looking at the materials that are supposed to be secret and private and getting to determine whether they get to use it in a prosecution," he said, adding that if Wood decides to appoint a special master as a substitute for the taint team, defense attorneys like himself will "be making that argument" in similar future cases "all the time."
