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

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

The recording is a nothingburger.

https://www.youtube.com/watch?v=ZJWhIW_b0A8

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.

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:

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Comments

…watch and see.

To those who haven’t lost their minds to Trump Derangement Syndrome (basically those still capable of thinking for themselves…so excludes liberals) this is a big nothing.

To the deranged left this is proof positive of something that requires impeachment and the death sentence

JusticeDelivered | July 25, 2018 at 1:47 pm

Rags, are you ready for Trump’s 2nd term?

Klieman noted “it’s rare for an attorney to tape a conversation with a client,”

Not anymore, it’s not. In fact, most of the “client management” suites, or the SEO (Search Engine Optimization) companies that manage client intake do it automatically.

Web.com’s package for attorneys has it standard, and it is turned ON by default, so that after you’ve spoken with your client, and you are not able to immediately take the notes regarding the phone call, you can pull up the recording and make the notes regarding what you discussed. Most clients never actually read their “engagement” letter, but I’d bet that for most of the younger attorneys out there that there’s a clause in the letter itself disclosing that phone calls may be recorded.

If you want to have a truly “private” conversation with no record of what was discussed, make an appointment, IN THE OFFICE, pay the fee for the time set aside, and request that the Attorney destroy any notes he made during the meeting at the end of the meeting. I tell this to my clients ALL THE TIME. Don’t discuss anything sensitive over the phone. If it’s that sensitive, set up a time IN PERSON.

I will reiterate:
In my State an attorney would be disbarred for surreptitiously recording his client, even with a one party privilege. He will be disbarred for sharing the tape or contents with a third party. The third party, if an attorney, will be disbarred for publishing the contents or sharing the recording unless preauthorized by the court.
Waiver of privilege will not exonerate point one. The panel on Laura Ingrahm last night seem to imply NY has a similar Rule of Professional Conduct.

And……………….how does this point to Russian Collusion? Because I am missing something as to how this influenced the election.

Oh damn, now I’m worried that my weekend with that pseudo-hippie girl 50 years ago will keep from a gubbermint job.

So, per Dershowitz, if the leak did not come from Cohen, but rather, from the Special Master or from federal prosecutors, Cohen is not in trouble whatsoever.

I do believe I said something about attorney-client privilege being a joke in the aftermath of the seizure of Cohen’s Trump materials.

    I apologize. I find the fact Lanny Davis is Cohen’s personal attorney to be so off-the-charts bonkers that I forgot. Davis handing the tapes to CNN is Cohen handing the tapes, on Cohen’s own client, to CNN.

    I have no idea what the ethics of THAT is.

    I also have no idea why prosecutors were cool with this. Isn’t that federal evidence for… something? But, this is why I try to post constructively on a law blog. I want to know these things. I want to learn.

Religion is the last refuge of a scoundrel as parsing ethics is for the lawyer. 500 years of western jurisprudence. Perfidious, dissembling bull-s artists. Inglorious scamsters. Imagine your plumber or mechanic pulling stunts like this and parsing morality.

They setup the system and then play act arguing the morality of the thing. Outrageous! Outrageous!

Takeaway: always secretly record all conversations with lawyers.

“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.”

I would ask the question how pretty much any conversation that Trump had with his attorney involved attorney client privilege. If Cohen was handling / discussing / BILLING(?) anything related to cleaning up something for Trump, he is acting as his attorney. I can guaran-damn-tee you Trump got billed for that time.

There is NO WAY this wasn’t “privileged” conversation. Trump having waived the privilege makes it different but it was a privileged conversation. How could it be otherwise?

smalltownoklahoman | July 25, 2018 at 4:27 pm

A high profile betrayal of trust like this wasn’t only meant to hurt Trump. It’s an attack on the public’s confidence in such systems as well. You think people had a generally low opinion of lawyers before, stuff like this does not help!

    This a thousand times, this! Most folks don’t like lawyers. This type of behavior is one thing, but when state bars don’t immediately rein in unethical lawyers, it taints all of them. Where’s the ACLU? Where is the outrage that a lawyers’ office was raided? How many mob-lawyers got their offices raided back in the day?

    The progressives/left love to USE lawfare. They love to judge-shop cases. They have weaponized the law. And yet, the system, the courts, other lawyers, all act as if the law is still a noble profession with ethics and standards.

Won’t this kill any future business for Cohen? If I were a rich and famous person who needed legal advice do you think I would go to someone who admits to secretly recording conversations and then leaks them? I could never trust him!

Does this Cohen recording that goes unpunished (Cohen and anyone else with fingerprints on the “tape”) not harm all attorneys? If I go to discuss something with any lawyer anywhere, do you think I just might be wondering if he/she is recording our discussion? Should I be careful about what I say as it may be made public or turned over to LE some day?

I would think ALL lawyers would be outraged and be demanding action against any and all of these people. Or is this just another acceptable wound to the rule-of-law in the USA.

    We SHOULD be demanding action: against the over-reach of the prosecutor who raided Cohen’s office, and then the Judge who allowed this farce to continue, and allowed for obviously privileged materials to be transferred to a prosecutor. That violation of privilege should have been squashed by the Judge.

    The privilege exists expressly for the purposes of allowing individuals to get legal advice from a professional without the fear of being told that the disclosures necessary to get that advice on the contemplated act being used later.

      Well it’s a moot point now, isn’t it? After Trump waived privilege and CNN broadcast contents, prosecutors are free to use anything put out in the public domain. Why they want it in the public domain is beyond me, but clearly they took no steps to prevent Cohen from spreading it around.

But what if someone offered Cohen FU money if he could provide something to get Trump out of office? Suppose Cohen says, yes, I have something, but please raid my offices to get it so that I don’t come out looking all scuzzy. Many of us are convinced that the Left will spend insane amounts of money to get rid of Trump, because, after all, they are insane. So what if a good chunk could have been given to Cohen to “flip?”

IMHO, his law career is over. Seriously, who would trust him at this point.

OleDirtyBarrister | July 25, 2018 at 5:31 pm

Trump’s counsel should respond and stir the pot by sending a tolling agreement (to toll the statute of limitations) to Cohen and to Lanny Davis and ask them to sign them. They should say, “if you are so sure that you did not just commit torts against Trump, you should have no problem signing the tolling agreement”.

Cohen was his counsel and owes a fiduciary duty to Trump. He also has the duty to protect the A-C privilege, work product doctrine, and to comply with the duty of confidentiality in the bar rules which is broader in scope than that required by the aforementioned doctrines. His secret recording of the conversation and release present serious ethical considerations and merit disbarment.

Davis knows that Cohen owes a fiduciary duty to Trump, and he and/or others induced Cohen to breach the duty.

Let’s stipulate, for shits & giggles, that the Trump campaign was the beneficiary of an illegal camouflaged in-kind contribution to his campaign by virtue of paying off Daniels (it’s probable that no such violation occurred with McDougall as the taped conversation occurred after her story was bought and no reimbursement was ever made).

Then let the FEC fine the campaign, collect the fine & get on with life. The Left’s fevered wet dreams of convicting Trump of some sort of criminal fraud are just that; not happening in real life.

Enough of this BS already.

Hey … if I was doing business with Trump I’d tape our conversations too. Good guy or not … Trump is untrustworthy.

Nobody’s mentioned Cohen violating federal wiretapping law:

https://legalbeagle.com/6613194-federal-law-penalty-illegal-wiretapping.html

Let alone NYS law:
http://www.dmlp.org/legal-guide/new-york-recording-law

Every single recording Cohen has made of every single client is an individual crime.

    Michael Cohen would not have recorded his clients without the consent of Michael Cohen. One party approved of the wiretap/ recording. I don’t see how his recordings are crimes unless he did it in a two-party consent state, which New York State is not.

    I’m not a lawyer, but this is stated clearly in both of your links…

      OMG – that’s the whole point of wiretapping laws: the law requires consent of the party being taped, not the party dong the taping.

      I cannot believe another lawyer here has not brought up this elephant in the room.

      To be fair, NY has a “one party” consent law, as is the fed law.

      Eleven states have two-party consent laws.
      http://www.dmlp.org/legal-guide/recording-phone-calls-and-conversations

      Depending on where both Trump and Cohen were at the time of the recording will govern the legality of Cohen’s recording of the call.

      In any event, who gives a crap what Cohen recorded. It’s not worse than recording Odumbo’s private statement to Russia’s president Medvedev: “I’ll have more flexibility after I’m re-elected.”

Bucky Barkingham | July 26, 2018 at 7:45 am

Since the blush is off of the Stormy Daniels rose this tape becomes the latest straw for the NeverTrumpers to clutch at. Their theme for the past year and a half has been “Trump is going down any day now, just you wait and see”. Waiting, waiting, …

This lawyer is a backstabbing piece of it.

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