About That “Secret Tape”…[UPDATED]

From CNN:

“The FBI is in possession of a recording between President Donald Trump and his former personal attorney Michael Cohen in which the two men prior to the election discuss a payment to a former Playboy model who has alleged an affair with Trump, Rudy Giuliani and a source familiar with the matter told CNN Friday.

Cohen has other recordings of the President in his records that were seized by the FBI, said both a source with knowledge of Cohen’s tapes and Giuliani, who described the other recordings as mundane discussions. Another source with knowledge of the tape, however, said the conversation is not as Giuliani described and is not good for the President, though the source would not elaborate.”

Now here are some ethics matters that the news media would be obligated to tell you, if journalists were, you know, competent, objective, and fair:

  • It is equivocally unethical for a lawyer to surreptitiously record a client without the client’s knowledge or consent. Always, no exceptions. It is usually unethical for a lawyer to surreptitiously record anyone without their knowledge or consent, even in states that permit non-lawyers to do it.

Such conduct is a direct violation of the universal legal ethics rule that prohibits a lawyer from engaging ” in conduct involving dishonesty, fraud, deceit or misrepresentation.”

  • This fact is crucial to the story, and should be prominent in any discussion of it. I have not seen or heard this mentioned in any news reports.

Let me know if you do, please.

  • The recording is also privileged, which means that it was information that a client provided to his lawyer in the course of seeking legal services or advice. As such, it cannot be used as evidence, unless the client, in this case, President Trump, consents. The client owns the privilege, not the lawyer who received the information, and not other lawyers the client may have.

I haven’t seen this critical information explained in any of the news reports either.

  • Some sources, immediately deemed unimpeachable by the likes of non-lawyer Trump-hater Rachel Maddow and bad, dumb, incompetent lawyer Chris Cuomo, claim that the President’s lawyer waived the privilege by “talking about it.” I wouldn’t be so sure about that. Here is the all-too-typical “authority” being reported:

“Vanity Fair’s Emily Jane Fox told MSNBC’s Rachel Maddow on Friday that a source familiar with the situation told her the tape was protected by attorney-client privilege, “but the president’s attorneys waived the privilege.”

What does “source” mean? What does “familiar” mean? What does “the situation” mean? When did news reporting slip this far into the muck? Whether or not what the President’s lawyers said—Rudy Giuliani characterized the recorded conversation to reporters, which is not the same as revealing it—privilege is taken extremely seriously by the courts and the legal profession, as is the client’s right to protect it. The recordings are not going to be deemed evidence until a courts says so, and until a court says so, any prosecutor that even listens to it risks being bounced out of the matter, along with his or her entire office. Yes, this even applies to the FBI.

  • Cuomo really is an embarrassment.  “They had to have waived this privilege for someone to be able to leak it out because it would be too damaging otherwise,” Cuomo argued. “If you have something that is subject of attorney-client privilege and someone leaks it out, they’ve got a big problem, especially if that person is Michael Cohen, who is a lawyer.”

Who can’t “leak it out,” you moron. And the recording was seized in a constitutionally questionable raid, not “leaked.” And lawyers can’t unilaterally waive a client’s privilege; only the client can do that.

  • Maddow, meanwhile, said that Trump’s team took away power from Cohen to offer investigators “something really valuable.” Well, at least Rachel’s just a hopelessly biased smug partisan shill posing as an ethical journalist, who has the kind-of excuse of not ever setting foot in a law school class, unlike fellow “resistance” member Cuomo, but still: no, you unforgivable hack, Trump’s team knows that a lawyer can’t offer investigators a surreptitious recording of a client, because no judge would let them use it.

If they did use such illegally obtained evidence, they would risk having any other evidence they uncovered as a result also being excluded.

Finally, I must point out that everything about Michael Cohen smelled from the first time my life was blighted learning about his existence, three full years ago. He is so sleazy his image slips off my eyeballs, leaving a film.  He sounds sleazy. He looks sleazy. He dresses sleazy.There is no explaining friendships, but though Trump didn’t consent to being treated unethically by this creep, he certainly set himself up for it, and has no excuse for being so reckless and stupid as to trust a lawyer like Cohen, who makes Lionel Hutz seem like Sir Thomas More. . If someone trusts people who virtually wear a neon sign that says, “I can’t be trusted!” and get burned as a result, I can’t muster much sympathy for him, especially when he boasts that he hires only “the best people.”

Only in Bizarro World can a lawyer like Michael Cohen be called “best.”

________________________

Sources: CNN, Washington Examiner New York Times,

25 Comments

Filed under Ethics Alarms Award Nominee, Government & Politics, Journalism & Media, Law & Law Enforcement, Rights

25 responses to “About That “Secret Tape”…[UPDATED]

  1. ”He is so sleazy his image slips off my eyeballs, leaving a film.”

    Good one, which I will use; with your permission and proper citation of course.

    But according to Myra Langtry (Annette Bening in The Grifters) the true test of being a sleaze remains:

    He was so crooked, he could eat soup with a corkscrew

  2. JutGory

    Critical typo alert: surreptitiously record WITH(?) client’s consent
    -Jut

  3. Greg

    Of course, the statement that this tape is “not good” for the president could mean a few things: (1) it would be embarrassing to the president if illegally leaked to the press, (2) it could be used as evidence against him if Mueller decides to pursue one or more of the preposterous theories that paying off a porn star is an illegal campaign contribution, or wire fraud or some other crime, or (3) the leaker who says it’s not good is lying, exaggerating or engaging in wishful thinking.

  4. The privilege issues is addressed in the CNN story you linked:

    “The recording had been deemed privileged by a former federal judge, known as a special master, one of the sources said, adding that Trump’s lawyers have sent a letter to the special master asking to withdraw the privilege.”

    • If they act on behalf of their client, that counts. “Talking” about the recording doesn’t. The Times this morning, meanwhile, says that it is not known if the court has withdrawn the privilege.

  5. Matthew B.

    I’m in full agreement. Breaking attorney client privilege and broadcasting it widely eliminates any possibility of a future conviction. It irrevocably taints the investigation.

    I also don’t get the glee expressed by the left over this. Trump was elected knowing he’s a creepy pervert who treats women like crap. Re-prooving that is irrelevant.

    Republicans have had it with the double standard. Bill Clinton is still revered, in spite of him being even worse. (Having sex with subordinates is worse. Probably raping them is even more so.)

    • Chris Marschner_

      Matthew

      Why is he a creepy pervert that treats women like crap? Ms McDougal claims she was engaged in a ten month liaison with Trump. Is it because of the age difference? She sold her story to the Enquirer for 150K. They didnt publish for their reasons.

      I am getting tired of the double standard that men that date young women are perverts and the women are somehow victims. That Playboy model wouldn’t give a better looking man of the same age who makes a mere 100k a year the time of day. One commenter replied to something I wrote on the Roe V Wade case stated emphatically that woman have biological sex drives that can create unplanned pregancies so the idea that men should decide what woman can and cannot do with their bodies is wrong.

      Women are perfectly capable of making their own decisions. They are not children requiring protection from their own choices. Women that choose to date or become involved with Trump do so voluntarily and would not continue to do so if he treated them like crap.

      Was Elizabeth Taylor a creepy pervert when she hooked up with that young studly man. He was seen as her boy toy.

      Notwithstanding the creepy pervert – treats women like crap statement – I agree with everything you said

  6. Chris Marschner_

    I won’t give Maddow the excuse that she never set foot in law school. I did not go to law school either and I know this. Any reasonably intelligent person understands or should know that attorney client privilege is for the benefit of the client and not the attorney.. It would not make sense any other way. Therefore, Cohen cannot waive that which is for the exclusive benefit of the client.

    Irrespective of any ethics violation NDA’s are normal legal agreements so if Trump wants to pay someone for the rights to a story in he and the payee are involved so what. Disney buys rights all the time. Many firms buy intellectual property from others and the payee is barred from disclosing information about such property. Before people say but this is about a moral issue let me point out if a woman or man hires a photographer to take what some consider “artistic” ie nude photos the rights to the photo belong to the photographer UNLESS the contract stipulates that the subject owns the rights and pays extra for them.

    The only issue that is relevant is whether or not campaign funds were used for personal purposes. Mueller can do forensic accounting to determine that fact from campaign finance documents. End of story.

    • I have read some people claiming that paying off Stormy Daniels was a campaign contribution per se.

      • Matthew B.

        And? What matters is if it was a coordinated payment by someone other than Trump himself or the campaign.

        Citizens United says that you can make as big of a contribution as you want, so long as they are not coordinated with the campaign.

  7. Isaac

    Does anyone else find it curious that the intelligence agencies have not only been constantly raiding people and seizing things over the course of this investigation, but that there are regular and consistent “accidental leaks” to anti-Trump news allies consisting only and entirely of private information, rumors and/or gossip fodder that reflect poorly on Trump, anyone who worked or volunteered for Trump, or people like Sean Hannity who defend Trump?

    It’s almost like they understand news cycles.

  8. Aleksei

    To quote the an EA cinema favorite:
    “You fucked up, you trusted us!”
    Animal House

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