Trump’s TV interview this morning is already being used to undermine him in court

In a new court filing regarding the Michael Cohen raids, Justice Department prosecutors in New York are citing President Donald Trump’s own words during his angry Fox & Friends interview Thursday morning — and they’re doing it to undercut Cohen and Trump’s arguments.

To recap: The FBI raided Cohen’s residence and office earlier this month and seized documents for an investigation being run by the US attorney’s office based in Manhattan (SDNY). A few days later, though, Cohen filed suit to try to block the government from reviewing the seized documents — claiming that “thousands, if not millions” of seized pages should actually be protected by attorney-client privilege and shielded from prosecutorial scrutiny. President Trump and the Trump Organization both joined the suit as well.

Much of the argument here has revolved around determining just how much of a lawyer Cohen really is. SDNY has claimed that he doesn’t seem to have been doing much legal work of late, and should therefore have few communications that merit shielding. They questioned whether Cohen even had any other clients besides President Trump. (Cohen responded by saying he had two other clients, Elliott Broidy and Sean Hannity.)

Enter President Trump. In a rambling and angry interview on Fox & Friends this morning, he followed a familiar playbook of his in trying to minimize Cohen’s role now that he’s become scandal-plagued. Asked how much of his legal work Cohen handled, Trump said, “As a percentage of my overall legal work, a tiny, tiny little fraction.”

The problem for Cohen is that this statement by Trump bolsters the government’s case that Cohen’s lawyering wasn’t all that substantial. And indeed, in advance of a scheduled hearing on Cohen’s suit midday Thursday, SDNY quoted that exact statement from Trump, along with a similar statement from Hannity.

Here’s what was at stake in court today: After SDNY seized these documents from Cohen in the April 9 raids, they planned to have them reviewed for attorney-client privilege by a Justice Department “filter team” (or “taint team”). This would be a separate set of investigators walled off from the team actually working on the case, who would separate out material they think could be subject to attorney-client privilege. SDNY said the taint team would ask permission from Cohen, Trump, or the courts before handing over potentially privileged evidence to the main investigative team.

Cohen filed suit to try to stop this process. He made several dubious-sounding claims, including that his team should be able to review the material before anyone in the government gets their hands on it. But Judge Kimba Wood had seemed open to one of Cohen’s proposals — that a “special master,” rather than a government taint team, should be appointed to review the seized evidence for potentially privileged material. (Essentially, a special master would be an outside person who would come in and take charge of this document review and production process, rather than just leaving it to the government to handle.)

SDNY initially expressed qualms that at a special master could bog down the review and make it take too long. However, they’ve since come around to the idea. In the same new filing this morning, they said they’d withdraw their objection and propose instead what they call a compromise — a special master, using a “technology-assisted review” process that they feel will be “timely” and “efficient.”

And once the hearing began, Judge Wood confirmed she would indeed appoint a special master — and named Barbara Jones, a former federal judge and partner at the law firm Bracewell, to the job.

Jones will be in charge of determining just how many of the president’s lawyer’s documents can be handed over to investigators — and how many get to be shielded by attorney-client privilege. The stakes are high, both for Cohen and for President Trump.