Trump Tweets it’s ‘So Sad’ Cohen Taped Their Private Conversations

Trump Tweets it’s ‘So Sad’ Cohen Taped Their Private Conversations

President Donald Trump seethed on Twitter this morning over the fact that his former lawyer Michael Cohen taped their private conversations and send it to the press.

CNN received a tape from Cohen with the two men discussing how to obtain a story from former Playboy model Karen McDougal about her alleged affair with Trump a decade ago.

What kind of a lawyer would tape a client? So sad! Is this a first, never heard of it before? Why was the tape so abruptly terminated (cut) while I was presumably saying positive things? I hear there are other clients and many reporters that are taped – can this be so? Too bad!

— Donald J. Trump (@realDonaldTrump) July 25, 2018

The tape is actually a big nothingburger and reminds me of when Rachel Maddow thought she had a huge scoop when she received Trump’s tax returns.

From The Washington Examiner:

“I need to open up a company for the transfer of all of that info regarding our friend David,” Cohen can be heard saying in the recording, most likely referencing American Media head David Pecker.

“What financing?” Trump said, according to the recording.

When Cohen tells Trump, “We’ll have to pay,” Trump is heard saying, “Pay with cash.”

However, due to the quality of the tape and the muddled audio, it is unclear whether Trump tells Cohen to pay with cash, or not pay with cash.

Cohen can be heard saying, “No, no, no,” after Trump’s suggestion.

According to Trump’s attorney Rudy Giuliani, no payment was made from Trump to McDougal.

The federal prosecutors took these tapes after agents raided Cohen’s office. I saw a lot of people mention that the tapes must be a big deal because Cohen waived lawyer-client privilege.

They must have forgotten that Trump also waived lawyer-client privilege.

Ethics

Let’s talk about ethics here. We should find out at what capacity they were speaking: Lawyer & client, friends, or business associates. Since both waived privilege I assume lawyer and client.

The New York Bar Association wrote that if taping “is not illegal it offends the traditional high standards of fairness and candor that should characterize the practice of law and is improper except in special situations such as those referred to below.” From the opinion:

The secret recording of telephone conversations has been considered by ethics committees in a number of jurisdictions and has uniformly been disapproved, with only one exception that has been brought to our attention.

—

N.Y. City 813 (1956) condemned the use of a concealed tape recorder in the office of an attorney to record the conversation between himself and opposing counsel while they were reviewing exhibits, stating:

“The practice is unethical and should not be countenanced. [Former] Canon 22 requires that the ‘conduct of a lawyer…with other lawyers should be characterized by candor and fairness’. The employment of a concealed tape recorder under the circumstances described is not consistent with candor and fairness.”

The opinion concludes: “There may be extraordinary circumstances when secret recordings of conversations by lawyers are rendered permissible, as for example, if sanctioned by express statutory or judicial authority.”

Analysis

CBS News legal analyst Rikki Klieman said that “[I]t is not illegal if you are in a one-party consent state and what that means is if there are two parties to a conversation, only one needs to know about recording the conversation so it’s not illegal, however there may be a question of ethics here.”

Klieman noted “it’s rare for an attorney to tape a conversation with a client,” but we still do not know for sure “if Cohen was acting in his capacity as a lawyer” when he had this conversation with Trump:

“There were vast amounts, in fact hundreds of thousands of documents that were seized from Michael Cohen’s offices and home and hotel,” Klieman said. “Of these, the special master reviewed the hundreds of thousands and only a small percentage of them was considered privilege. We don’t even know if this conversation with then candidate Trump and Michael Cohen was in the privilege pile or the non-privilege pile.”

Harvard Law Professor Emeritus Alan Dershowitz said Cohen could face a lot of trouble:

“If it fact this material was originally leaked by Cohen when it was still privileged … remember, a judicial officer found it to be privileged, it then was leaked only after it was leaked did [Rudy] Giuliani waive the privilege as to this in order to protect the privilege as to any other possible conversations … if Cohen is the source of the leak, he has a serious problem,” Dershowitz said on Fox News, indicating that Cohen may have violated attorney-client privilege.

“This was a conversation between a lawyer and a client that should never have been heard,” he said.

He also mentioned no crime took place on the tape:

“Not even a close question,” he said. “There’s no crime.”

“Even if, and the tape is unclear, Trump raised the word ‘cash,’ it was then a discussion,” Dershowitz said. “The lawyer said, ‘no, no, no,’ and President Trump said, ‘no, we’ll do it by check.'”

Dershowitz agreed, however, that the leak of the tape indicates that Cohen is “not as loyal to his client as he once was.”

I asked lawyers on Twitter their thoughts about it and enjoyed a conversation with a few:

I have never done it and even in a state that allows for one-party consent I’d never do it without the prior consent of the client. It comes too close being a potential privilege breech for me.

That being said I can see why some attorneys might do it in some circumstances. https://t.co/TeHENkIkf6

— Doug Mataconis (@dmataconis) July 25, 2018

I cannot agree on recording client without consent except in one case: under cooperation with the government subject to warrant. If circumstances mean a lawyer thinks their client will involve them in something illegal, the lawyer should terminate representation! Not record them.

— HawkeyeErik (@eriksnewton) July 25, 2018

Generally agreed. If an atty/client relationship has reached the point where a lawyer feels the need to record a client without their knowledge then there’s obviously been a breakdown in the relationship and the attorney should withdraw.

— Doug Mataconis (@dmataconis) July 25, 2018

Illinois is a one party consent state but has an exception if you reasonably believe (always an interesting standard) that you’re collecting evidence of a crime. Not saying that’s Cohen here but it’s plausible.

— josh goldberg (@Chijogoldbe) July 25, 2018

Yea but when does it become a lawyer’s job to collecting evidence of a crime? This is one of those issues where you’re basically walking on a very thin edge of the disciplinary rules.

— Doug Mataconis (@dmataconis) July 25, 2018

There’s almost no chance you engage in this activity while abiding by standards of professional conduct. It is a breach of every personal fiduciary duty there is. Trust me: you don’t want lawyers to be able to do this to clients.

— HawkeyeErik (@eriksnewton) July 25, 2018

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