The Outrageous Outing of Sean Hannity, Cont’d

[Ubiquitous]

It violated longstanding, judicially endorsed standards.

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.

https://www.nationalreview.com/2018/04/sean-hannity-outing-
violates-law/

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 parte and 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 Times reports,
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.

As the manual elaborates, federal courts have held that there is
ordinarily “no legitimate government interest served” by publicly
naming an uncharged person. That is the case even when charges
against the person are being contemplated; a fortiori, there is no
excuse for gratuitously embarrassing someone who is suspected of no
wrongdoing.

This adds fuel to the fiery contention that, where
President Trump is involved, investigations are driven
by politics, not law enforcement.

The investigation of Cohen involves the suppression of information
about extramarital affairs between high-profile men and women
involved in pornography. Cohen’s work for Trump and Broidy, the only
other clients he claims, involves non-disclosure agreements for this
purpose. It was inevitable, then, that if the third alleged client
was identified publicly, there would instantly be media speculation
that this client, too, must be entangled in some tawdry sex scandal
that he retained Cohen to hush up.

This is exactly what happened. Surprised while doing his radio show
at news that his name had been exposed in court, Hannity, who has
been married for 25 years and has two kids, naturally felt the need
to beat back the resulting innuendo. When he denied that he had ever
retained Cohen in connection with “any matter between me and a third
party,” the Times couldn’t contain itself:

The reference to a third party seems to be an allusion to
one of Mr. Cohen’s specialties: drawing up confidentiality
settlements. The lawyer has acknowledged paying $130,000 to
Stephanie Clifford, an adult-film actress known as Stormy
Daniels, as part of a nondisclosure agreement to secure her
silence before Election Day in 2016. Last week, it came to
light that Mr. Cohen had arranged for Mr. Broidy to pay
$1.6 million to a former Playboy model, Shera Bechard, who
became pregnant during an affair with Mr. Broidy. After
the confidential deal became public, Mr. Broidy resigned
from his post as a deputy finance chairman of the Republican
Party.

Perhaps you think this is poetic justice for Hannity, who is not
above using flimsy evidence to lambaste political opponents and
Trump critics. But as a very wise federal judge once admonished me,
courts “don’t do poetic justice, they do prosaic justice” — the
routine, workaday adherence to the principles and standards on which
the rule of law depends.

Under that kind of justice, courts protect uncharged people from
being identified in public proceedings in connection with criminal
investigations. The failure of the court and the government lawyers
to enforce that standard just adds fuel to the fiery contention
that, where President Trump is involved, investigations are driven
by politics, not law enforcement.

[Matthew Henry]

The outing of Sean Hannity violated federal litigation rules; the judge
and government lawyers knew it. And CNN and NYTimes didn’t divulge that
their lawyer was behind it.

Post by Ubiquitous
It violated longstanding, judicially endorsed standards.
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.
https://www.nationalreview.com/2018/04/sean-hannity-outing-
violates-law/
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 parte and 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.
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 Times reports,
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.
As the manual elaborates, federal courts have held that there is
ordinarily “no legitimate government interest served” by publicly
naming an uncharged person. That is the case even when charges
against the person are being contemplated; a fortiori, there is no
excuse for gratuitously embarrassing someone who is suspected of no
wrongdoing.
This adds fuel to the fiery contention that, where
President Trump is involved, investigations are driven
by politics, not law enforcement.
The investigation of Cohen involves the suppression of information
about extramarital affairs between high-profile men and women
involved in pornography. Cohen’s work for Trump and Broidy, the only
other clients he claims, involves non-disclosure agreements for this
purpose. It was inevitable, then, that if the third alleged client
was identified publicly, there would instantly be media speculation
that this client, too, must be entangled in some tawdry sex scandal
that he retained Cohen to hush up.
This is exactly what happened. Surprised while doing his radio show
at news that his name had been exposed in court, Hannity, who has
been married for 25 years and has two kids, naturally felt the need
to beat back the resulting innuendo. When he denied that he had ever
retained Cohen in connection with “any matter between me and a third
The reference to a third party seems to be an allusion to
one of Mr. Cohen’s specialties: drawing up confidentiality
settlements. The lawyer has acknowledged paying $130,000 to
Stephanie Clifford, an adult-film actress known as Stormy
Daniels, as part of a nondisclosure agreement to secure her
silence before Election Day in 2016. Last week, it came to
light that Mr. Cohen had arranged for Mr. Broidy to pay
$1.6 million to a former Playboy model, Shera Bechard, who
became pregnant during an affair with Mr. Broidy. After
the confidential deal became public, Mr. Broidy resigned
from his post as a deputy finance chairman of the Republican
Party.
Perhaps you think this is poetic justice for Hannity, who is not
above using flimsy evidence to lambaste political opponents and
Trump critics. But as a very wise federal judge once admonished me,
courts “don’t do poetic justice, they do prosaic justice” — the
routine, workaday adherence to the principles and standards on which
the rule of law depends.
Under that kind of justice, courts protect uncharged people from
being identified in public proceedings in connection with criminal
investigations. The failure of the court and the government lawyers
to enforce that standard just adds fuel to the fiery contention
that, where President Trump is involved, investigations are driven
by politics, not law enforcement.
--
Dems & the media want Trump to be more like Obama, but then he'd
have to audit liberals & wire tap reporters' phones.