The Michael Cohen tape bombshell finally showed up in Donald Trump’s Twitter timeline almost a day after it landed in the media, and the president still seems stunned by the revelation. Trump insisted that the tapes would show that he did “nothing wrong,” but called the notion that a lawyer would tape a client “inconceivable.” Trump also suggested that it might be illegal:
We’ll get to “inconceivable” in a moment, but the more pressing question is whether it’s legal and whether it can be used in evidence by prosecutors. That depends on where the recording took place. Most states have “one-party consent” laws, where only one party has to be aware and willing to have the recording be legal and admissible in evidence. Twelve states have “two-party consent” laws, a bit of a misnomer as they require all parties to consent to recording, but in this instance would mean that both Cohen and Trump would have had to consent to recording conversations.
Unfortunately for Trump, neither New York nor Washington DC require all-party consent for recording. Assuming that the conversation didn’t take place when Trump was in one of the twelve states with all-party consent laws (the location of each party matters), then the recording is legal and usable by prosecutors in court. Even if Trump was on his private jet at the time, federal laws apply, and the federal law allows for one-party consent, too. And if Trump was in one of those states at the time, we’d likely never have heard about the tape(s) at all, as they would be useless to prosecutors.
So it’s likely not illegal, but is it “inconceivable” for a lawyer to tape a client? Not only is it not inconceivable, it’s conceivable enough that the American Bar Association ruled in 2001 that it doesn’t violate legal ethics to do so, at least in certain circumstances. The New York County Lawyers Association recommended dispensing with a previous ban on taping conversations in general as far back as 1993. Clearly the issue has been “conceivable” for a significant amount of time.
Besides, in this instance there does seem to be some question as to whether Trump was a client at all. This point came up in the earlier raid on Cohen’s offices (which Cohen himself acknowledged was handled professionally), when Alan Dershowitz proclaimed that “attorney-client privilege is dead.” The privilege cannot be applied when the attorney takes part in the alleged crime, however, and that appears to be what Robert Mueller’s team suspects happened with Cohen.
The question of when Trump was a client and when he was a partner in other business is what occupies a special master at the moment, assigned to look through the records seized from Cohen in the earlier raid. Trump later claimed that Cohen was his attorney on the Stormy Daniels affair, but it’s not clear that the claim will stand there if Cohen took part in an illegal act. The same applies to the machinations around Karen McDougal’s claims. The leak of the news of the tape, likely by Trump’s legal team, suggests that the special master is putting this in the “Unprivileged” bin, which in turn suggests that Cohen wasn’t legitimately acting as Trump’s attorney on this matter. (That is, however, a matter which can still be litigated.)
Does that mean Trump’s in trouble? It depends on what Cohen taped Trump saying, but it’s not inconceivable that it’s either exculpatory or inculpatory. But it’s certainly not inconceivable that someone assigned to make arrangements to keep embarrassing stories out of the media might have taken out a little recorded insurance to be kept from being made the fall guy.
As for Trump’s use of the term, The Princess Bride said it best: You keep using that word. I do not think it means what you think it means.