All I can think of is that Bill Pullman ransom scene in “Ruthless People.” This could very well be the stupidest person on the face of the earth.
Why would a lawyer, especially a lawyer who might have reason to believe his activities were criminal, keep a recording of anything unless it’s necessary? The impression left by this WaPo story is that Cohen did it almost out of force of habit, a “just in case” sort of thing. Needless to say, any recording of a non-client is non-privileged.
I remind you again: Even recordings of conversations between Cohen and a client (assuming they exist) aren’t necessarily privileged. They’re privileged if they involve legal advice and don’t have involve a crime or fraud in which Cohen was participating. Imagine the universe of information outside those parameters that might be in the FBI’s hands now.
A question to bear in mind as you read is why anyone in Cohen’s orbit would be leaking this to a newspaper. The story’s going to set off a white-knuckle panic in anyone who’s ever had a private conversation with him. And it’s conceivable that Cohen stored the recordings somewhere secret such that the FBI had no knowledge of them — until now. My best guess as to the reason for the leak is that people who knew that Cohen kept tapes simply cannot believe this is happening and that the tapes are now likely in an FBI office somewhere. They had a “holy sh*t” moment and couldn’t resist sharing it with the media.
“It was his standard practice to do it,” [a Cohen associate] said…
Cohen wanted his business calls on tape so he could use them later as leverage, one person said. Cohen frequently noted that under New York law, only one party had to consent to the taping of a conversation, this person added.
During the 2016 race, Cohen — who did not have a formal role on the campaign — had a reputation among campaign staff as someone to avoid, in part because he was believed to be secretly taping conversations.
In one instance, Cohen played a recording of a conversation he had with someone else to a Trump campaign official to demonstrate that he was in a position to challenge that person’s veracity if necessary, an associate recalled.
The source who said it was Cohen’s “standard practice” to make recordings claims that Cohen “often” played them for him. He has firsthand knowledge of their existence, or so he says; this isn’t a “someone told someone who told me” thing.
It may not have been leverage over business partners alone that drove Cohen to keep the recordings. As noted in the excerpts, even people on the campaign were leery of him. He may have been keeping tabs on Trump’s own personnel and presenting him with audio evidence of what they were up to behind closed doors. That’s speculation but it would be in keeping with Cohen’s role as top crony and “fixer”/enforcer. If there was disloyalty within the ranks, he’d logically be one of the people tasked with sniffing it out and bringing evidence back to the boss. For all we know it may have been an institutional habit: Trump himself has claimed at times in the past to have recorded private conversations, most famously with James Comey. When pressed for details he always ends up denying it. But he has to deny it, whether it’s true or not. Making secret tapes to gain leverage over people in unguarded moments only works if they truly are unguarded, which they wouldn’t be if they had reason to believe they were being recorded.
The best-case scenario here (apart from the possibility that all of WaPo’s sources are lying) is that Cohen destroyed the recordings as soon as he no longer had a use for them. Any recording of a non-client could presumably be destroyed at will. Client recordings may be trickier since usually lawyers are required to retain records for a period of time, but Trump would doubtless say that he gave Cohen permission long ago to destroy audio of any conversation they had. As long as Cohen wasn’t caught destroying them after a prosecutor or the FBI inquired about them, I assume he’d be fine. One wrinkle, though: WaPo says that Cohen would “store the conversations using digital files,” raising the possibility that he “destroyed” them simply by deleting them. As every computer user should know, though, that won’t do it. Unless you overwrite your entire hard drive with new data, the “deleted” data (or pieces of it) is still there in the shadows, capable of being recovered. How thorough do you suppose Cohen was in getting rid of it?