President Donald Trump lashed out Saturday over lawyer Michael Cohen‘s recording their conversation about possibly paying off a Playboy model, but it appears that his lawyers actually waived privilege over the tape. That means federal prosecutors can listen to it, and possibly use it in a case.
Authorities got their hands on the audio after FBI agents obtained it during April 9 searches on Cohen’s home, hotel room, and office. Both sides fought over how many of the almost 900,000 seized documents were privileged. Special Master Barbara Jones determined that the tape was one of 2,633 which met that designation, but according to a CNN source, Trump’s team waived it in this case.
“It is the client who owns the privilege and not the lawyer,” the person said. “In this specific instance, it was Trump who waived the privilege after Special Master Jones ruled the tape was privileged. Team Trump actually contacted the judge and waived the privilege, thus, permitting Rudy [Giuliani] the ability to release his version of the tape’s content. It is ironic that Trump would complain about a privileged tape that would not have been released and then chooses to make it public himself. Very foolish strategy by team Trump.”
CNBC put out a similar report.
The conversation reportedly concerned a possible payoff to Playboy model Karen McDougal. She claimed to have had an affair with him. American Media Inc., the parent company of the National Enquirer, ended up buying her rights to the story, but sat on it. She sued them, claiming she was misled about the deal. (The president’s team denied the affair ever happened.)
Trump lawyer Rudy Giuliani has repeatedly said the tape itself is exculpatory, and proves the president did nothing wrong. The audio showed no wrongdoing, he told CNN.
“Cohen is talking about buying the rights from AMI (American Media Inc.),” Giuliani said. “They’re talking about a corporation doing it, one of their corporations doing it. The President says ‘make sure it’s done correctly, and make sure its done by check [so there would be a record].'”
But no payment was made in the end, Giuliani said.
Cohen’s legal team argues that it won’t hurt their client.
“Obviously, there is an ongoing investigation, and we are sensitive to that. But suffice it to say that when the recording is heard, it will not hurt @MichaelCohen212,” Cohen’s lawyer Lanny Davis tweeted on Friday. “Any attempt at spin can not change what is on the tape.”
Trump complained that the recording was “possibly illegal” but a source pointed out that New York, where the discussion took place, features a one-party consent law, so it would be legal for a person to record a conversation without permission from the other individual.
[Image via Mark Wilson/Getty Images]