When the Manhattan District Attorney’s Office (DANY) stated that it sought the full grand jury record related to Michael Cohen’s campaign finance convictions more than a year ago from the U.S. Attorney’s Office for the Southern District of New York (SDNY), and that SDNY had produced only a subset, many wondered why SDNY had not made a more complete production to DANY earlier.
And when Judge Juan Merchan adjourned Donald Trump’s trial after SDNY produced roughly 200,000 documents in response to Trump’s January 2024 document requests, it begged the question: Did SDNY drop the ball?
Trump’s document requests are a fishing expedition to try to find any evidence of Cohen’s wrongdoing.
The answer, in short, is no. For one thing, DANY did not request most of the documents that Trump’s legal team requested. SDNY, where I previously worked as deputy chief of the criminal division, had not produced other documents because either DANY already had them or SDNY did not have them.
Three things can help us best understand what happened with SDNY’s productions and the implications for Monday’s hearing.
The Manhattan District Attorney’s Office did not request most of the documents
SDNY did not previously produce to DANY most of the documents that it has now produced to Trump — because DANY had not requested them. Those requests were limited to evidence related to Cohen’s campaign finance offenses; Trump’s requests were not. Trump’s document requests are a fishing expedition to try to find any evidence of Cohen’s wrongdoing. As a result, DANY found that the overwhelming bulk of SDNY’s production is completely unrelated to the subject matter of DANY’s case. SDNY cannot be blamed for not producing documents that DANY never requested. Rather, Trump deserves blame for his 11th-hour attempts to dig up dirt on Cohen.
The Manhattan District Attorney’s Office already had some of the documents
SDNY previously declined to produce data from Cohen’s phones to DANY because, among other things, DANY already had it. It’s not unreasonable for SDNY to decline to produce evidence that DANY already possessed. Although DANY produced Cohen’s phones to Trump, Trump asked SDNY for them anyway. Why? Trump said he was not comfortable that what he got from DANY was the same as what SDNY had. Essentially, Trump attacked the integrity of DANY’s document production. Given the severity of Trump’s allegation, SDNY made the right call to produce Cohen’s phone data to Trump. Now Trump can challenge the reliability of that evidence before trial, rather than on appeal.
Ultimately, this dispute about Cohen’s phone data seems overblown; Of the 6,871 documents from SDNY’s Cohen phone data, DANY considered fewer than roughly 270 to be relevant and not previously produced to Trump. That’s not a lot of documents. Yet again, SDNY’s responses to document requests were reasonable. Trump’s belated requests were not.
The Southern District of New York did not have some of the documents
DANY requested reports of Cohen’s statements regarding his campaign finance offenses from SDNY, and SDNY produced reports from its investigation. At that time, SDNY had only one report of Cohen’s statements to the Office of the Special Counsel (SCO). SDNY did not produce it because it did not cover campaign finance as DANY requested.
In January, Trump requested that SDNY produce special counsel reports of Cohen’s statements. Unlike DANY, Trump’s request wasn’t limited to Cohen’s campaign finance offenses. By that time, SDNY had five additional special counsel reports from another matter that it did not have when DANY made its requests. Importantly, DANY advised that if the special counsel reports were relevant to the issue of Cohen’s credibility, SDNY could produce them to Trump.
So SDNY produced 172 pages of special counsel reports that DANY said were relevant and had not been previously produced to Trump. As with Cohen’s phones, that’s not a lot of documents. Once again, SDNY acted appropriately. Trump’s tardy document requests were problematic.
Although DANY accurately argued that Trump’s belated requests are to blame for the trial delay, there’s an implication that SDNY shares the blame. It does not. This dispute over SDNY’s productions highlights the strained relationship between DANY and SDNY on this case. It began when SDNY requested that DANY pause its investigation into the conduct underlying the Cohen case while SDNY investigated the same conduct. That’s not an improper request, but one that likely caused tension between the offices.
It worsened when DANY learned that SDNY had concluded its investigation (giving DANY the green light to investigate) from public reports rather than a phone call from SDNY. That lack of professional courtesy reflects poorly on SDNY.
But the bottom line is that any issues between the Manhattan District Attorney’s Office and the Southern District of New York are irrelevant. Trump’s delay tactics, rather than any arguable SDNY shortcomings, must be front and center at Monday’s hearing. Trump’s requests to SDNY turned up relatively few new and relevant documents and do not justify a finding of discovery violations by DANY or additional trial delay. The train was stalled temporarily; now it’s time to get it back on track and moving toward a speedy trial.
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