CNN reported over the weekend that the two-minute recording of Trump and Cohen discussing the rights to Karen McDougal’s story was made public only because Team Trump allowed it to be. The special master in Cohen’s case in Manhattan had withheld the recording from prosecutors on grounds of attorney-client privilege. Trump, the client, told her not to bother and to hand it over to the U.S. Attorney. That’s when Rudy Giuliani started talking about it.
Why would he do that? Even Team Cohen was confused by it, per CNN: “Team Cohen remains surprised that Trump’s lawyers removed the protective claim of privilege, given their view that the tape is harmful to the President.”
One obvious reason is that it’s good PR *if* Giuliani’s right that there’s nothing incriminating on it. (Which he may well be.) It’s embarrassing that Trump was caught talking about McDougal but in the end the question is whether any laws were broken. If he has an opportunity to show the world that he has nothing to hide on that front, why not show them by waiving the privilege?
Many a smart litigator is offering another reason for waiving it, though.
/5 it’s possible that the USAO would use it here too. Especially if the tapes are not particularly bad for Trump, the better PR move may be to let them go rather than picking a privilege fight that could lead to a judicial ruling that he went to Cohen for crime or fraud.
— IncitementToResurrectionHat (@Popehat) July 23, 2018
That would mean that the special master determined that there was probable cause to believe that the communications were made in furtherance of a crime, which is far worse than withdrawing priv assertion. But I promise you Trump did not waive priv “because it’s already out there”
— Daniel Goldman (@danielsgoldman) July 23, 2018
I can think of no good legal reason for the Trump team not to assert privilege over these tapes. Their strategy, such as it is, must involve the optics of being associated with Cohen or with arguing with the DOJ over the crime-fraud exception to attorney-client privilege. https://t.co/SnTi6zDC6m
— Renato Mariotti (@renato_mariotti) July 23, 2018
Game it out yourself. If Trump tries to keep the tape from the U.S. Attorney by asserting the privilege, imagine the headlines if the DOJ turns around and files a motion demanding that it should receive the tape anyway because it contains evidence that a crime or fraud was committed by the president and his lawyer. That’s one of the exceptions to attorney-client privilege: For obvious reasons, you can’t shield your conversations with your lawyer if the two of you were engaged in a criminal conspiracy. If the DOJ did that, the 100-point headlines blaring that “JUSTICE DEP’T SUSPECTS TRUMP OF CRIME OR FRAUD” would be a PR nightmare to end all nightmares for POTUS. And there’d be no way of completely “winning” on it no matter how the court ruled on the DOJ’s motion. If the court agreed that there’s reason to believe a crime or fraud was committed, obviously that’s an even bigger PR nightmare. Impeachment chatter would heat up instantly. If the court ruled in Trump’s favor and deemed the tape privileged because there’s just not enough evidence of crime or fraud, that’s clearly better for POTUS — but in the meantime he’d still have endured weeks or months of “TRUMP SUSPECTED OF CRIME/FRAUD” coverage. And there’d still be months of speculation to come on cable news about (a) what was so bad on the tape that the DOJ thought it might help prove a crime or fraud and (b) whether the Department might be able to nail Trump on crime/fraud anyway, even without the tape.
When you add all of that up, what’s the argument for trying to hold the tape back? If it’s incriminating, odds are that the feds are going to get it anyway under the crime/fraud exception. If it’s not incriminating, let ’em have it. Why create suspicion by fighting to keep it away from them when there’s no reason to do so?
News is swirling today, by the way, that 12 recordings from Cohen’s files have now been turned over to prosecutors. Twelve recordings of Cohen and Trump?! Well, no, or at least not according to Team Trump. A source in their camp tells Business Insider that the recordings involve third parties talking to Cohen about Trump.
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. This person told Business Insider they had heard the tapes.
“We waived our privilege because Cohen blabbed about the tapes to Michael farking Avenatti” is not a statement I expected to arise in l’affaire Cohen, but here we are. Same calculus here as above, though: If the recordings of Cohen with the third party aren’t incriminating, why risk bad headlines by trying to assert privilege over them? If they are incriminating, they’re probably going to end up with prosecutors whether you assert the privilege or not. So why force the crime/fraud headlines now by seeking to withhold them?
In lieu of an exit question, read this surreal CNN story about the surreal Avenatti/Cohen run-in at a Manhattan restaurant not long ago. Quote: “The source said the clear suggestion by Avenatti to Cohen was to work together against Trump.”