SURREPTICIOUSLY RECORDING (AND BANKING THE GOODS ON) MR. TRUMP MAY HAVE BEEN THE ULTIMATE ACT OF SELF-PRESERVATION
Untitled, Charcoal, 22” x 30", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Mr. Trump demands of others unconditional, uncompromising loyalty. He is incapable of reciprocating—with one notable исключение. He cannot admit or truthfully characterize any fact that places him in a true light or challenges his fragile ego. As the fixer for such a dishonest, disloyal, unfaithful and mentally and emotionally challenged client (a client who also has a history of turning on others after he deems them of no more use), Mr. Cohen chose to surreptitiously record conversations he had with Mr. Trump. As Mr. Trump’s fixer, Mr. Cohen banked the goods on his client, which may have been the ultimate act of self-preservation, despite public criticism to the contrary. Mr. Cohen, after all, is a small fish while Mr. Trump would be a whale of a catch, something of which Mr. Cohen’s behavior suggests he was keenly aware. Mr. Trump apparently never figured that one out. Even with a pardon in the offing, Mr. Cohen would not be at risk of incrimination and could be forced to testify.
The media just revealed the existence of one such recording along with its subject matter, which the special master in the Southern District of New York had placed on a very short stack of “attorney-client privileged” communications. Mr. Trump’s tweets notwithstanding, with certain exceptions likely inapplicable here, recording conversations with others without disclosure or permission is legal under federal law so long as the person who does the recording is either a participant or is authorized by a participant. The law of most states is consistent with that federal law. A few states are more restrictive, however, prohibiting recording unless all participants are notified and give consent. New York is not one of those states, so Mr. Cohen’s recordings of his conversations with Mr. Trump are legal. (Whether it was ethical for Cohen to make the recordings is a different question.) What if the participants in the conversation are in different states? Say Mr. Cohen was in his office in Trump Tower New York City and Mr. Trump was on his cell phone in the Grotto at the Playboy Mansion? California falls within a minority of jurisdictions with the more restrictive laws on recording conversations. Last I checked, however, the law of the jurisdiction where the monitoring is conducted governs, which makes sense.
Attorney-client privilege belongs to the client and not the attorney. The attorney has no independent authority to waive the privilege. In this case, however, would the special master’s “privileged” designation stand if challenged by the US Attorney’s “taint team” in the SDNY? Unlikely. The communication would likely fall within an exception to the attorney-client privilege. That may be why Mr. Trump and his team leaked, if they did, and are trying to get out in front of it. [Ms. Daniels’ attorney Mr. Avanatti, on the other hand, opines the leak came from the Cohen team as a shot across the bow, a last-ditch attempt to persuade Mr. Trump to bring Mr. Cohen into the tent. That would be a serious ethical breach, in my opinion, because Mr. Cohen had taken the position the recording was privileged, Mr. Trump undoubtedly did the same, and the special master agreed, at least provisionally.] Even if the recorded conversation did not fall within an exception to the attorney-client privilege, Mr. Trump’s media attorney appears to have waived the privilege on behalf of and as agent for his client by publicly discussing the recording and its contents. Had it remained under the shroud of privilege, however, Mr. Cohen would have been prohibited from sharing with others, even the US Attorney and the Special Prosecutor, the communication. I’d be surprised if his legal team leaked it. I’m guessing, however, that Mr. Cohen has little concern in the grand scheme of things for the confidentiality provisions under the Rules of Professional Conduct.
Untitled, Pen and Ink, 18” x 13”, Richard J Van Wagoner, Courtesy Van Wagoner Family Trust**
While writing this post, I came across an article that does a much better job than I could of explaining the attorney-client privilege, its purpose and at least one of its exceptions within the context of the Trump/Cohen relationship. I recommend the entire article, which came out shortly after the execution of the search warrants on Mr. Cohen’s office, home and hotel room. As for the “crime-fraud” exception to the attorney-client privilege, the author explains:
“What then could be the basis for the SDNY search and review of these materials? Materials that, at least facially, would be protected.
“That question brings us to something known as the crime-fraud exception to the attorney-client privilege. It is, if you will, an exception to an exception that allows the government to read, review, compel production of and compel testimony of an attorney and his or her records. It arises if, and only if, the client uses the attorney’s services to commit a crime. (So, to be clear, it does not apply retrospectively, as when I tell you about a crime I have already committed.) An example of this—an easy one—would be if I use an attorney to help me draft an affidavit that I am going to submit to a court, and the affidavit is false. I have used the attorney’s help to commit a crime. The lawyer may not (indeed usually does not—since, notwithstanding the public derision, most attorneys would not knowingly assist a client in committing a crime) know that the crime is afoot—he may be completely ignorant. But if the government can show a court that there is a basis for thinking that the crime has occurred (here, in my example, that the affidavit is a lie) then the attorney can be and will be required to testify as to the nature of his interaction with the client. ‘What did the client tell you?’ is a completely impermissible question generally—but it is a lawful question when there is reason to think that the answer is ‘X happened,’ and the lawyer took that answer and put it in an affidavit that was submitted to a court and it turns out that the statement that ‘X happened’ is a bald-faced lie.
“You can readily imagine other examples of when and how a lawyer’s services might be used to commit a crime. The lawyer helps set up a shell corporation (perfectly legal generally) and the corporation is used to foster a Ponzi scheme. The lawyer is asked about how to secure insurance, but the insurance is then used to collect on an insurance fraud. And so on. In other words, the crime-fraud exception applies when an attorney’s advice is used to further the crime. Or, as the Supreme Court put it in Clark v. United States, 289 U.S. 1 (1933), ‘A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.’
“And that, one suspects, is where the rubber meets the road. It may well be that President Trump sought Cohen’s legal advice regarding the Daniels [or McDougal] affair for an illegal purpose (e.g. to avoid federal campaign-finance laws or to conceal the true source of the funds with which she was paid or to threaten her). In that circumstance, it seems clear that the crime-fraud exception might apply—and it appears highly likely that the FBI and the lawyers in New York have made that showing to a federal magistrate. Or, as one observer put it: ‘Michael Cohen is in serious legal jeopardy.’ President Trump may be as well.”
Mr. Trump bombs every bridge he crosses with napalm. Sorting out whether anyone is telling the truth and, if so, who might be as simple as pushing “play.” For evidentiary purposes, Mr. Cohen can lay foundation for and authenticate the recordings. He can give context. And with actual recordings, which the government can determine have not been modified or altered, Mr. Cohen’s credibility becomes less of an issue. My guess, and it’s only a guess, is whatever Mr. Trump and his clowns claim was said won’t match the contemporaneous recordings. This could inure to Mr. Cohen’s substantial benefit. It appears he has a lawyer who knows how and is in the process of maneuvering to make that happen. We will see if Mr. Trump finds a lawyer who can prevent it.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers.