Attorney Michael Cohen Taped Trump
July 20, 2018, 7:49 a.m.
Disgraced attorney and President Trump’s longtime lawyer, confidant, fixer, and consigliere– Michael Cohen, has apparently recorded a conversation between the President and himself concerning Karen McDougal.
Who is Karen McDougal
Karen McDougal is a former playboy model. In March, McDougal interviewed with CNN’s Anderson Cooper regarding her yearlong affair with President Trump that began in 2006. First Lady Melania, had just recently given birth to Barron, their son.
McDougal sold her story for $150,000 to American Media Company which owns The National Enquirer, but they never published the story, most likely because of the publishing company’s close relationship to Trump. Thus, the story never got out since McDougal had signed an NDA (Non-Disclosure Agreement) also known as a “hush agreement.” There is actually a term for killing a story and it is called “catch and kill.”
NDA’s are legal and contractually valid unless somehow the contract/agreement can be negated as Stormy Daniel’s lawyer, Michael Avenatti is trying to accomplish.
Michael Cohen, who had his home, office and hotel room raided earlier this year by the F.B.I. as a result of the ongoing Robert Mueller investigation, is also being investigated for his involvement with President Trump and any possible campaign finance law violations.
Yesterday, the “failing” New York Times published a story that Cohen had recorded conversations between himself and President Trump regarding McDougal. Trump has denied knowledge of any payments to McDougal, his same response when it came to adult film star Stormy Daniels, whose real name is Stephanie Clifford. As we now know, there was a payment of $130,000.00 from Michael Cohen to Daniels regarding her alleged affair with Trump.
“Nothing in that conversation suggests that he had any knowledge of it in advance…” Rudy Giuliani
Giuliani went on to add there is really nothing relevant in the conversation and that Trump even ended the conversation by stating ‘Do it right.’”
Is this legal? Depends.
There is no doubt that an attorney recording a conversation is not the norm, actually, I’ve never heard of it until now, then again, nothing has been normal regarding this administration. But, could it happen to you?
Imagine you have information that could potentially be damaging to you, whether in a divorce case, bankruptcy case, or any other legal issue. Are you protected? Yes.
There are certain privileges one is afforded such as attorney-client privilege, husband/wife privilege, clergy/priest privilege, and doctor-patient privilege. But, it should be noted, not everything is covered.
For example, if you committed a past crime, when consulting with your attorney, you are covered under attorney-client privilege. Your attorney cannot go on social media and post those discussions nor talk about it with anyone else. However, when communicating with your attorney you mention a future crime, that’s not covered under attorney-client privilege (crime-fraud exception) and as a matter of fact, your attorney as an officer of the court is obligated to report you to law enforcement.
Can I Record Our Conversations?
Again, the answer is depends. In Florida, I cannot record someone without their knowledge. Going back to my law school days, there was a law student that was reporting all the students she believed were committing rules infractions. At one point in meeting with the dean of the law school, she threatened to sue the university and she stated she had recorded everyone as proof that the law school was failing to take action. She was expelled on the spot since it is a crime and violation of one’s right to privacy in the state of Florida. However, each state differs. In New York, one person can record the other without letting them know in advance.
Once, I was representing a difficult client who at times was aggressive and threatening. It got to the point that I even added a paragraph to my retainer agreements that if a client is disrespectful or aggressive, I immediately withdraw from their case. At one point during our conversation, he said he had been recording me all along and would sue me. That is when I advised him he had no legal right to do so and that in fact, I was going to sue him and file a complaint with the State Attorney’s Office. He responded it is perfectly legal because he had an app. on his phone that allows such recordings. Which brings up another issue.
There are cell phone apps that record conversations, but like always, you better know the laws in that state and/or jurisdiction, or you are opening yourself up to legal liability.
What’s the best way to handle a situation like this? Simply tell the individual they do not have the right to record your conversation if you have reason to believe they are.
Furthermore, if you are not in a typical setting, say for example at a cocktail party and you meet an attorney, make it clear this isn’t a casual conversation and that you are seeking legal advice.
Alexander Hernandez, Esq.
Updated- It didn’t take long for President Trump to respond the media reports of Cohen’s recording.