Law & the Courts

The Outrageous Outing of Sean Hannity, Cont’d

Fox News host Sean Hannity poses on the set of his show “Hannity” in New York City. (Mike Segar/Reuters)
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.

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.

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