Why Cohen’s recording of Trump conversation is a nothing-burger

Michael Cohen, President Donald Trump‘s former lawyer, allegedly secretly recorded a conversation where the two discussed one or more payments to a former Playboy model who said she had an affair with Mr. Trump, according to a New York Times article. But, much to the dismay of the Times’ fanbase, the tape is likely inadmissible as evidence and appears to exonerate, rather than incriminate, the president.

President Trump’s longtime lawyer, Michael D. Cohen, secretly recorded a conversation with Mr. Trump two months before the presidential election in which they discussed payments to a former Playboy model who said she had an affair with Mr. Trump, according to lawyers and others familiar with the recording.

The F.B.I. seized the recording this year during a raid on Mr. Cohen’s office. The Justice Department is investigating Mr. Cohen’s involvement in paying women to tamp down embarrassing news stories about Mr. Trump ahead of the 2016 election. Prosecutors want to know whether that violated federal campaign finance laws, and any conversation with Mr. Trump about those payments would be of keen interest to them.

The problem with all this hyperventilating over a recording is that it is almost surely inadmissible as evidence and any new evidence gained because of the recording would also be useless to prosecutors as it would be “fruit of the poisonous tree.”

The recording was allegedly made during a private conversation between Trump and his then-lawyer. That conversation is protected by attorney-client privilege and so would any secret recording of the conversation [emphasis added]. According to NOLO.com, an online legal resource, Clients who speak to their lawyers, with no one else present, can reasonably expect secrecy, and “If someone were to surreptitiously record the conversation, that recording would probably be inadmissible in court.”

So while the New York Times is enjoying a short-lived happy dance about discovering the recording, it will yield nothing that can be used in any legal proceeding nor can it be used to discover other evidence.

Another important fact in the article is that, according to Trump’s current lawyer, Rudy Giuliani, no payment was ever made to the model and the recording demonstrates that Donald Trump had done nothing wrong.

“In the big scheme of things, it’s powerful exculpatory evidence,” Mr. Giuliani said. “Nothing in that conversation suggests that he had any knowledge of it in advance.”

To further debunk the whole smoking gun thing the Times is after, Giuliani said that they had waived any claim to attorney-client privilege where the tape was concerned because the recording is evidence in favor of the president.

Despite the facts, the Times article does its best – which isn’t much – to turn the useless recording into a smoking gun against Trump.

The recording’s existence further draws Mr. Trump into questions about tactics he and his associates used to keep aspects of his personal and business life a secret. And it highlights the potential legal and political danger that Mr. Cohen represents to Mr. Trump. Once the keeper of many of Mr. Trump’s secrets, Mr. Cohen is now seen as increasingly willing to consider cooperating with prosecutors.

So yeah, keep it classy New York Times.

Update 7/21/18: Added statement from Rudy Giuliani about attorney-client privilege