Sex, Privilege, and Audiotapes (Updated)

Privilege, sex, criminal investigations, and hyperbole.  Of course, I am referring to another eventful 48 hours in the continuing Trump–Cohen privilege-review saga.  The latest installment is lawyer Michael Cohen’s secret 2016 recording of his conversation with President Trump regarding Karen McDougal, the former Playboy model who alleges a year-long affair with Trump in 2006.

Let’s break down this latest twist, for it offers many lessons.

What We Know—The Special Master’s Review

SDNY’s Judge Kimba Wood appointed Barbara Jones as Special Master to conduct a privilege review of materials the federal government obtained in a raid on Cohen’s Trump Tower office.  SM Jones filed her latest review report, available here, on July 13, 2018, and her Second Report and Recommendations, available here, on Thursday, July 19, 2018.

The SM released 883,634 non-privileged items to the U.S. Attorney’s Office.  Was the Trump–Cohen audiotape part of that release? We do not know.

Cohen and/or Trump claimed privilege over 4,085 items, and the SM agreed that the privilege covered 2,633 of them.  Was the audiotape among the 2,633? We do not know.

Of the remaining 1,452 that the SM found non-privileged, Cohen (not Trump) objected to the non-privilege designation on 22 of them, but advised the SM that he “will not raise these objections with the Court.”  Was the audiotape one of these 22? We do not know—the SM’s report is silent on these privileged and non-privileged items’ substance.

Leaked Recording

On Friday, July 20, 2018, the New York Times reported the tape’s existence, stating that the FBI seized the recording during the April 9, 2018 raid.  With no mention of the audiotape in public court filings, who leaked the recording’s existence to the Times?

Unless the tape was part of the 880,000+ non-privileged items released to the government, it is doubtful that government lawyers even have the tape to leak it.  If the tape truly contains a confidential, privileged conversation (see below), then why would Cohen and his attorneys risk an ethical violation by leaking confidential information?

The New Yorker and other media outlets suggest that Trump’s lawyers informed the Times, a reasonable conclusion.

Is the Recording Privileged?

Recall that the privilege applies to (1) communications between (2) a lawyer and her client that are (3) confidential when made, (4) kept confidential thereafter, and (5) pertain to legal advice.  We knew that any Trump–Cohen communications would face scrutiny in SM Jones’ privilege review, as I chronicled in Privilege Issues Confronting the Trump–Cohen Special Master.

Let’s analyze. More…

Privilege Issues Confronting the Trump–Cohen Special Master

As detailed in my post, Reports of the Privilege’s Death are Greatly Exaggerated, the SDNY rejected the U.S. Attorney’s request that its “taint team” conduct the initial privilege review of documents seized in the FBI’s raid on attorney Michael Cohen’s Trump Tower office.  The Court likewise rejected Cohen and President Trump’s request that their respective legal teams make the initial privilege calls.

Instead, the court, in this Order, appointed former magistrate judge Barbara S. Jones as Special Master to conduct the privilege review. Special Master Jones submitted her initial report to the Court on May 4, 2018, which you may read in full here.

To date, the USAO has produced to Cohen and Special Master Jones electronic contents of certain telephones and iPads as well as electronic copies of eight boxes of hard-copy documents. The USAO anticipates producing the final bulk of seized materials by May 11, 2018.  The privilege review is underway, and Cohen and Trump’s lawyers will provide their first privilege designations to the Special Master today, May 7, 2018.

So, what privilege issues are likely to arise requiring the Special Master’s privilege decision?  Here are a few.

Disclosure Protections

Let’s first identify the legal protections that Cohen and Trump may assert to preclude documents from federal prosecutors’ review.

Obviously, Cohen and Trump will assert protections afforded by the attorney–client privilege.  The privilege is quite narrow, as it only protects confidential communications between a client and her lawyer made for legal-advice purposes.  The privilege belongs to Cohen’s clients, not Cohen, although Cohen must assert the privilege unless his client(s) direct otherwise.

It is likely that the raid consumed communications between Cohen and his lawyers, including lawyers representing him in adult-film star Stephanie Clifford’s pending California case against Trump.  If so, Cohen owns that privilege and will certainly assert it.

A less-mentioned protection that may become operative is the work-product doctrine.  This doctrine generally protects documents evidencing an attorney or party’s opinions and mental impressions made when involved in or anticipating litigation.  Given that Cohen negotiated a non-disclosure agreement with Clifford, whether on his behalf or Trump’s, a plausible argument exists that Cohen and Trump anticipated some litigation involving her.  They will have to prove it, though.

Who are the Clients?

Special Master Jones must identify Cohen’s attorney–client relationships before analyzing the privilege elements.  Cohen disclosed that, from 2007 through January 2017, he “worked at the Trump Organization” serving in the role of “Executive Vice President and Special Counsel to Donald J. Trump.”  In this role, he “served as legal counsel to Trump Organization, Donald J. Trump.”  What do these vague statements mean from a client-identification perspective?  Special Master Jones will need to know.

In 2017–2018, Cohen also represented three other clients. He represented President Trump in the Clifford matter and Elliot Broidy, the former RNC Deputy Finance Chairman, in a non-disclosure arrangement with a former model. (New York Times story here).

And he may or may not have represented Fox News’ Sean Hannity.  Cohen says yes, but Hannity denies it.  Special Master Jones must determine whether Cohen and Hannity had an attorney–client relationship before deciding whether the privilege protects their communications from federal prosecutors’ review.

Legal Advice or Business Advice?

Cohen’s role with the Trump Organization will pose another set of privilege issues.  Special Master Jones will consider whether the privilege protects communications between Cohen and other Trump Organization employees.  The privilege only covers communications made so that the lawyer—purportedly Cohen—can render legal advice to his client (whoever that is).

The privilege will not protect Cohen’s communications involving business advice for the Trump Organization.  More…

A Non-Political, Legal Analysis of Trump Jr.’s Privilege Claim 3

Donald Trump, Jr.’s attorney–client privilege assertion over discussions with President Trump—in the presence of lawyers—has generated significant commentary on television news shows, and in news articles and opinion columns.  Some claim the privilege assertion was “brazen” and “unequivocally” wrong, while others see merit in the privilege argument or take a wait-and-see approach.

This is political—not legal—theater.

Many have expressed an interest in my analysis. So, here it is—my objective, non-political, legal analysis of the Trump Jr.’s privilege claim based on what we know. Those seeking blind support of the privilege assertion or a conclusory, hyperbolic denouncement should look elsewhere. More…