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.
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.