In yesterday’s column, I contended that it was outrageous for federal district judge Kimba Wood to direct that talk-radio and Fox News host Sean Hannity be publicly identified as Michael Cohen’s third client. Cohen, whose law practice is, shall we say, less than thriving, is under criminal investigation by the FBI and federal prosecutors in the Southern District of New York (SDNY). He claims only three clients. The other two, President Trump and GOP fundraiser Elliott Broidy, acknowledge retaining Cohen. Hannity denies ever having had a formal attorney-client relationship with him.
The court’s order that Hannity’s name be disclosed in open court violated longstanding, judicially endorsed standards against identifying uncharged persons in legal proceedings attendant to criminal investigations.
Forget about evidence of wrongdoing. There is not even a suggestion that Hannity is involved in any crimes. He is a longtime friend of Cohen’s. He says they’ve had some informal legal discussions about such matters as real estate — and as any lawyer will tell you, informal discussions with non-lawyer friends are common. Hannity insists, however, that he has never retained Cohen to represent him in any legal matter, and has never paid him or received an invoice from him. There is no public evidence to contradict this, and no suggestion that Cohen has previously represented himself as Hannity’s attorney.
There has been no intimation that Hannity has any pertinent information about the activities for which Cohen is under investigation. His only relevance to the probe involves the question of whether there is a factual basis for Cohen to claim that an attorney-client (A-C) relationship with Hannity should prevent investigators from perusing some materials seized by the FBI from Cohen’s office and residences. And since Hannity is not suspected of wrongdoing, even that question appears to be of little importance.
Consequently, there was no reason for Hannity’s name to be revealed publicly. As I observed yesterday, grand-jury proceedings are secret by law. When prosecutors and agents conducting an investigation seek judicial warrants to search, eavesdrop on, or arrest subjects, it is done in ex parteand in camera, not in public hearings. In short, the public does not have the right to know the names of people – whether or not suspected of wrongdoing – who pop up in a criminal investigation.
Monday’s hearing was public. Whether it needed to be is debatable: The matter is under grand-jury investigation and it involves search warrants; neither of those things entails public proceedings. Yet the issue for the court’s consideration was Cohen’s motion to bar the government from reviewing the materials seized, which he filed publicly. It would probably have been better if Judge Wood had held the hearing under seal; she could later have issued a public decision that explained her ruling on the legal question without disclosing client names or any other factual information related to the investigation that may have arisen. The judge instead elected to proceed publicly, but she still should have limited the open-court discussion to argument about the legal issue, retreating in camera for any discussion of client names.
In any event, the prosecutors could easily have handed Cohen’s attorney, Stephen Ryan, a grand-jury subpoena demanding disclosure of the client identities. That would have required Ryan to reveal the identities to the grand jury, but not to the public. Clearly, the prosecutors and Ryan were aware of this: As The Atlantic’s Natasha Bertrand tweeted yesterday, Ryan was prepared to surrender the information to the government under seal.
Apparently, Judge Wood was initially disposed to let that happen. Then, however, the judge allowed Robert Balin, an attorney for the New York Times and CNN, to intervene. Balin, the Timesreports, argued that potential embarrassment was not a sufficient reason to withhold the purported client’s name from the public. The judge was somehow persuaded by this frivolous contention. Without providing Hannity any notice and opportunity to be heard on the matter, she directed that his name be disclosed in open court.
The flaw in Balin’s argument is patent. It is true that, if the public has a legal right to know a piece of information, the fact that the information is likely to embarrass someone is not sufficient cause to suppress it. But the public has no right to know the names of people who are relevant to an investigation – even if they are suspected of wrongdoing. Furthermore, even when the government arrests someone or formally accuses someone of a crime in an indictment, the names of uncharged persons are not disclosed. (That is why you see such references as “Cooperating Witness No. 1,” “Unindicted Co-conspirator No. 3,” or “Corporation X” in charging documents.)
Though they apparently chose not to remind Judge Wood of this longstanding policy, government lawyers are well aware of it. The United States Attorneys Manual admonishes that “in all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties.” Unless a person has been formally charged with a crime, not only should the government avoid publicly naming the person; federal prosecutors are further schooled to avoid even an “unnecessarily-specific description.” In other words, while calling Hannity “Client No. 3” would have been proper, even referring to him as “S.H.” would have transgressed the policy. There is no justification for publicizing his full name.
A new maxim created by liberal witch hunt style investigations is “The number of illegal leaks designed to embarrass Republicans is inversely proportional to the amount of actual, real evidence found to support the liberal accusations.” In other words, the less actual evidence of what liberals accuse can be found, the more and more rapidly the leaks are distributed.
Apparently the left wants a third-world legal system to go along with the third-world economy they covet.
@Deplorable Me: For the judge that presided over the marriage of Soros to demand the outing because CNN lawyer said it had the right to know about a person not under investigation or accused of any crimes…really?
Then have some semi conservative on his own show tell him he should have disclosed it? STFU.
Every commentator on every propaganda show needs to disclose every time they
consult a lawyer or ask one a question, NOW!
@kitt:
Well, if there was a uniform set of rules for all, that might happen. However, as we know, there is ONE set of rules for Republicans and NO set of rules for liberals.
Sean Hannity has become part of an effort to obstruct justice and obscure the truth with lies.
You can tell this is so because he wants to stop an investigation that has been tasked with uncovering facts that will clearly establish what the truth actually is. Uncovering facts is what real journalists are supposed to do. Propagandists are all about something else. They mold public perceptions to further an agenda without regard for the truth.
@Greg: Hannity, like many others, have been asking for some sort of proof this witch hunt is justified or end it. There has been NO evidence presented any where at any time to justify the ongoing investigation. Yet, it goes on and on and on, simply for the amusement of the left, and it is causing damage to the image of the United States, to the Presidency, to the DOJ, to the FBI and causing harm to diplomatic efforts.
The only information revealed is how deeply the left wing weaponization of our government has gone and many of those involved.
He’s been outed some more, thanks to a bit of investigative journalism on the part of the UK publication, The Guardian.
No doubt U.S. news outlets will be picking up on the story.
@Greg: He invested in foreclosures and whats your point? I bought a foreclosure 20K less than it tax assessment value, the neighbors relieved that they did not have to worry about squatters anymore.
Seems the mortgage crisis was Slicks doing.v Here’s the real story, in brief: In 1995, using the powers of the presidency, Bill Clinton turned the 1977 Community Reinvestment Act into an aggressive program that basically forced banks to lend money to “underserved” communities. That meant those with low incomes who couldn’t necessarily repay a loan.
Meanwhile, his Department of Housing and Urban Development got involved in a big way.
Jack Cashill, writing for the American Thinker, notes: “HUD, which Congress had made the regulator of Fannie Mae and Freddie Mac in 1992, began to pressure these agencies to set numerical goals for affordable housing, even if that meant buying subprime mortgages. The media cheered the agencies on.”
@Greg:
Why are you liberals so psychotically afraid of people who speak?
The point would be that he was secretly exploiting the situation that he was publicly condemning. He must have suspected there was something questionable about this, or he wouldn’t have felt a need to hide behind shell corporations that served no other purpose that to conceal who was involved in the transactions.
Maybe he’ll “drop a bombshell” on himself. One can only hope. I’d like to see the whole alligator-infested swamp carpet bombed. It would be worth any collateral damage.
@Greg: Elizabeth Warren did the same thing (REAL hypocrisy) but I’m sure if she was foisted upon you as a candidate, you would still quickly change the head on your idol and begin worshiping her. No, the real point is the ongoing campaign to destroy conservative spokespersons because you liberals live in mortal fear of their message: that conservatism is more beneficial than liberalism and capitalism benefits more than socialism.
@Greg: I never heard him condemn those buying foreclosures just the idiot policy that made so many of them available. Many famous people create shell companies for their investing , there are goofs who would damage his properties.It obvious you know very little about real wealth creation, dems seem only to know how to destroy it.
Of course you didn’t. He was with the mob of looters.