Federal prosecutors just this month turned over more than 100,000 pages of evidence in response to former President Donald Trump's January request in his New York hush-money case, leading to a delay in the trial. But a new report indicates the Justice Department has been withholding similar documents from the public for years.
Michael Cohen, the former president's ex-fixer who is expected to be a key witness in Manhattan District Attorney Alvin Bragg's criminal case against Trump, had been requesting for more than two years many of the same records that federal prosecutors at the Southern District of New York, who worked on an earlier version of Bragg's investigation, just released to Trump, The Daily Beast reports.
Cohen, who collaborated with journalist Brian Karem to request evidence from the Justice Department and FBI, had largely been met with resistance from the DOJ in his efforts to obtain the records.
The revelation comes a week after Judge Juan Merchan, who is overseeing the case, granted a 30-day delay in the Manhattan trial, which was slated to begin Monday, to allow Trump's legal team to review the swath of materials.
Southern District federal prosecutors have "no logical explanation for the disparate responses" to Cohen and Trump's request for records, Bennett Gershman, a former New York prosecutor and current Pace University law professor told Salon.
While it's difficult to parse motives for prosecutors' actions, Gershman said, "it seems to me that throughout this case the federal prosecutors have been acting in bad faith in resisting not only Cohen and Karem’s efforts to obtain the documents, but also the same repeated efforts by the Manhattan District Attorney’s office to obtain the materials."
"Their claims that the materials were 'sensitive,' that they needed to consult dozens of other overlapping agencies, and that they had more important prosecutorial responsibilities to attend to appears to me pretextual, especially since they were able to respond to Trump’s request with alacrity and did not offer any excuses," he added.
Southern District of New York federal prosecutors' decision to drop thousands of pages of evidence has plunged the case into turmoil just weeks before trial, now expected to begin as early as mid-April. Bragg's office has placed blame on Trump for waiting until earlier this year to request these records, while lawyers for Trump claim the rollout shows the district attorney was holding back exculpatory evidence, according to The Daily Beast.
In December 2021, journalist and Salon columnist Brian Karem filed a Freedom of Information Act request for records related to the investigation into the 2016 Stormy Daniels hush-money cover-up and subsequent prosecution carried out by the U.S. Attorney's Office at the Southern District of New York, doing so with express permission from Cohen. After not hearing back from the office, Karem sued.
In court filings, the FBI in New York later "identified over 450,000 pages of potentially responsive material” and told Karem they'd begin turning over 500 pages a month to him in August 2022.
The FBI, however, did not start producing those records, which are marked "unclassified," to Cohen until March 11 of this year, The Daily Beast reports. The batch the FBI turned over amounted to merely 32 pages.
That same week, the Southern District of New York had delivered 73,193 documents about the same investigation to Trump's legal team after having expedited a request from his lead defense lawyer, Todd Blanche, who sought information that could undermine Bragg's case and Cohen's credibility.
State court filings show that the Southern District has turned over 119,000 pages for Trump this month alone, while a source familiar with the situation told The Daily Beast that, as of this week, the sum has risen to up to 200,000 pages.
Why federal prosecutors "stonewalled Cohen and Karem" by refusing their request is unclear, Gershman said. He speculated, however, that it could stem from "the decision of then-Attorney General Barr, and his subservience to Trump," the Southern District of New York having a "virulent dislike" of Cohen, or the Southern District of New York attempting "to undermine what looks like a successful prosecution of Trump by the New York DA after what many observers believe to be SDNY’s serious blunder in not charging Trump along with Cohen."
The only "real legal basis" as to why federal prosecutors waited to produce the documents to Cohen would be if "the documents didn't exist at the time of the request," Neama Rahmani, a former federal prosecutor, told Salon.
The government has to produce documents covered by "three broad categories," he explained: exculpatory records, which would show "either Trump or Cohen is actually innocent," any record that could be used to "impeach" or discredit a witness, and prior witness statements.
Cohen, he explained, was "entitled" to the information while his case was pending in 2018, but after its conclusion, what information he and Karem would be entitled to depends on the "smaller universe" the Freedom of Information Act covers.
"Cohen was prosecuted, and Trump was not, so there may have been significant documents that relate to why Trump wasn't prosecuted," Rahmani said. "I don't know if that necessarily would be relevant to Cohen."
The Southern District's failure to turn over those records could pose a "huge problem" for the government, however, depending on what was disclosed to Cohen during his prosecution and what the documents contain, Rahmani added.
"If the Department of Justice had these documents in their possession and didn't produce it in the Michael Cohen case, that's a discovery violation," he said. "That may be grounds to overturn a conviction."
Trump's attorneys are using the evidence drop to accuse Bragg of withholding relevant case information for his office's benefit and arguing he should have previously obtained the records. The move also boosts Trump's aim of discrediting Cohen.
But whether the documents were in the district attorney's "possession, custody or control" is what really matters, Rahmani said, noting that "two different sovereigns [and] two different prosecutors" are handling the related records.
Bragg's office has staunchly denied Trump's claims he violated information-sharing rules. Instead, he's argued that Trump's team is rolling out another tactic by requesting mostly duplicative or irrelevant documents from federal prosecutors, leading to the trial timing that Assistant District Attorney Matthew Colangelo called "a function of defendant’s own delay.”
Prosecutors in the district attorney's office said in a Thursday filing they "engaged in good faith and diligent efforts to obtain relevant information" from federal prosecutors before Trump's indictment last spring, according to The New York Daily News.
Federal prosecutors turned over a selection of documents to Bragg but did not provide seized data from Cohen's phones “because it would be unduly burdensome and because [the DA] had” already obtained Cohen's phones, the filing said. Bragg's office later made follow-up requests the government did not fulfill, they said in the filing.
“These extensive efforts easily distinguish the circumstances here from cases where the People ‘made no attempt’ to obtain potentially relevant materials before filing a certificate of compliance,” Assistant District Attorney Matthew Colangelo wrote in the Thursday filing.
Outside of the procedural delay to review the records, Rahmani doesn't see the government's rollout of documents having any impact on Bragg's case against Trump.
What outcome may arise depends on how Judge Merchan will respond to Trump's "wild and frivolous" claims against Bragg's office, Gershman added. Merchan is expected to hear arguments about the documents on Monday.
"As the case stands now, and regardless of the 'blame game,' the defense apparently has everything it needs to go forward with the trial. If they need some extra time to review the documents the judge may likely go along with their request," Gershman said, adding: "I haven’t seen anything in the defense claims that would cause the judge to accept their baseless claims."
