The Issue Raised By Cohen’s Trump Tape

I don’t believe we have written anything about the “bombshell” tape that President Trump’s former lawyer, Michael Cohen, leaked to CNN. On the tape, Trump and Cohen can be heard discussing a potential payment to a former Playboy Playmate of the Year named Karen McDougal. McDougal claims that she had an affair with Trump in 2006. I doubt that anyone cares about the underlying facts.

The president’s reaction was, on its face, entirely appropriate:

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

Trump is right. It wasn’t illegal or necessarily improper for Cohen to tape a conversation with his client, but to release that tape to CNN was a shocking violation of his duty to preserve client confidences under the New York Lawyer’s Code of Professional Responsibility, DR 4-101. Unless, of course, that release was consented to by the client, Trump.

And, sure enough, it appears that there was such a waiver of the attorney-client privilege:

Eyebrows were raised over the weekend after multiple outlets reported that President Donald Trump’s lawyers waived privilege claims over a bombshell tape seized by the FBI from his former longtime attorney Michael Cohen that contained a conversation between the two about payments made to ex-Playboy model Karen McDougal.
***
Even more surprising was the news that broke on Monday. Special master Barbara Jones wrote in a court filing to US District Judge Kimba Wood that privilege claims were withdrawn over 12 audio tapes seized from Cohen — an action that could’ve been taken by either Cohen, Trump, or the Trump Organization. It’s unclear who appears on those 12 tapes, or if the tape revealed on Friday was among them.

… Because the parties released their privilege claims over the tapes, they too have been turned over to federal investigators probing Cohen, she wrote.

While the facts are murky, I take it that Trump’s lawyers concede having waived the privilege:

A person with knowledge of the Trump team’s decision making on the matter told Business Insider the president’s attorneys waived their privilege claims over all of the tapes because they claim Cohen had been discussing them with others, such as Michael Avenatti, the attorney for porn star Stormy Daniels, who is suing the president and Cohen.

The person said Trump’s legal team didn’t know “exactly what Cohen” has told others, but added that the lawyers “have the tapes” and “heard them all.” Trump’s attorneys “don’t have any problem with anybody listening to them,” the source said, adding that the remaining tapes disclosed Monday contain conversations between Cohen and a third party about Trump, not direct discussions between Trump and Cohen. …

Trump’s lawyers waived privilege so they could speak freely about the tapes, now that they claim Cohen is separately speaking about them, the person said.

Apparently Rudy Giuliani has been talking about the content of the McDougal tape:

Trump’s personal attorney, Rudy Giuliani, confirmed to The Times that Trump discussed payments to McDougal with Cohen, but he said that ultimately no payment was made. Giuliani said the recording was less than two minutes long, and that there was no indication based on it that Trump knew of the payment to American Media Inc. beforehand.

Giuliani said Trump told Cohen that if he did pay McDougal, it should be in the form of a check instead of cash so that it could be properly recorded, The Times reported.

Meanwhile, a source told CNBC that waiving the privilege claim over that tape provided Giuliani the ability to release “his version of the tape’s contents.” Giuliani confirmed to NBC News that Trump’s team waived the privilege protections over that recording.

Here’s the point: the president has run through a succession of lawyers in connection with the Democrats’ many attacks on him. It is critically important that he receive top-quality representation, that his lawyers be coordinated, and that Trump be at least generally aware of their strategies. At the moment, it seems doubtful that any of those standards are being met.

If Trump’s lawyers really did waive privilege on the Cohen/McDougal recording so that Giuliani could spin it to the press, it was, in my view, a blunder. It raises a serious question about whether Rudy Giuliani, at this stage of his career, is the right person to be heading up Trump’s defense against the Democrats’ legal attacks.