Cohen recorded conversations with Trump

The FBI is in possession of a recording between President Donald Trump and his former personal attorney Michael Cohen in which the two men prior to the election discuss a payment to a former Playboy model who has alleged an affair with Trump. CNN's Athena Jones reports.

Posted: Jul 21, 2018 7:52 PM
Updated: Jul 21, 2018 8:23 PM

President Donald Trump's lawyers have waived attorney-client privilege regarding a secretly recorded conversation he had in September 2016 with his former longtime lawyer Michael Cohen in which they discussed payments to an ex-Playboy model who says she had an affair with the President, according to sources familiar with the matter.

The move comes as an attorney for Cohen openly questioned Trump lawyer Rudy Giuliani's claim that the tape showed no wrongdoing by the President, furthering the growing divide between Trump and Cohen, who had once said he'd take a bullet for the President.

Trump's lawyers asking to remove the privilege designation from the recording means that the government now has access to it as part of the US attorney for the Southern District of New York's probe into Cohen. It effectively gives prosecutors the ability to use the recording if they find it relevant to their criminal investigation of Cohen.

The prosecutors working on the case had not reviewed the recording because it, along with millions of other documents and files seized in FBI searches of Cohen's home, hotel room and office in April, was undergoing the special master process, in which an independent party reviews whether the items should be regarded as privileged and thus withheld from prosecutors. The special master had designated the recording as privileged, according to two sources familiar with the process, but Trump's lawyers subsequently waived their right to maintain that designation.

After The New York Times first revealed the existence of the tape -- and Giuliani claimed the tape was exculpatory evidence that did no harm to Trump — his legal team decided to remove any protection relating to the attorney-client relationship on this specific matter.

The President's attorneys clearly believe that the tape will not show any wrongdoing by their client. The transaction never happened, Giuliani told CNN.

But Giuliani's claims that the tape does Trump no damage was disputed by a source close to Cohen who said that Giuliani is "trying to say what is bad is good." Later Lanny Davis, Cohen's newest attorney, put out a statement claiming that "when the recording is heard, it will not hurt Michael Cohen. Any attempt at spin cannot change what is on the tape."

Team Cohen remains surprised that Trump's lawyers removed the protective claim of privilege, given their view that the tape is harmful to the President. They claim that Giuliani is mischaracterizing the tape in key ways that contradict the facts of the conversation as they see them. But they declined to offer a description of their exact view of the conversation beyond saying that Giuliani's more benign descriptions of the tape are contradictory to what actually occurred.

What's more, they see Giuliani's public comments as a way to change the subject from the President's near-universally panned performance in Helsinki, Finland, at the beginning of last week.

Giuliani put a positive spin on the content of the in-person conversation on Friday, describing it as Trump discussing potential payments to former Playboy model Karen McDougal, who alleges Trump an affair with her. Trump denies the allegation.

"Cohen is talking about buying the rights from AMI (American Media Inc.)," Giuliani told CNN on Friday. "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.'"

Giuliani's point is that Trump did nothing wrong -- that before the conversation he knew nothing about any payments, noting that no payment was made and that he suggested paying by cash so there would be a record of it.

The President's lawyer also sought to position the President as wronged by the recording. Trump was stunned to hear about the tape, Giuliani said, and, according to a source familiar with the matter, responded when informed of its existence that "I can't believe Michael would do this to me." Giuliani said the recording is short—less than two minutes, according to another source -- and was simply a professional exchange between a client and his lawyer.

That was echoed Saturday by the President, who tweeted that it was "inconceivable that a lawyer would tape a client - totally unheard of & perhaps illegal. The good news is that your favorite President did nothing wrong!"

In response, Cohen attorney Davis tweeted, "The strategy of @realdonaldtrump @potus @RudyGiuliani is flawed; just as is #Trump's false #Twitter statement made against @michaelcohen212 this morning. Rudy claims the tape is "exculpatory". Why so angry?"

Asked about the Davis tweet, Giuliani told CNN on Saturday: "How would you feel if your lawyer was recording you without telling you? The tweet is straightforward and correct."

One of the sources familiar with the matter pointed out that New York is a "one-party" consent state, meaning that as long as one participant in the conversation gives permission to record, it is legal.

"Taping a conversation is the functional equivalent of retaining notes," the source said.

The source added that the recording and any lawyer's notes are privileged and non-public and called it ironic that Trump would complain about the recording and yet also choose to release it.

"It is the client who owns the privilege and not the lawyer," the source 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."

When the existence of the apparent deal with AMI was first reported by The Wall Street Journal just days before the election, the campaign said that the President was unaware of anything relating to a McDougal payoff, and Hope Hicks—then a spokeswoman—denied that Trump even had an affair with McDougal. But the recording, made two months earlier, suggests otherwise.

In addition, Giuliani has said there is only one real conversation with the President and the rest are non-substantive, short, more mundane conversations about ministerial matters, like setting up discussions.

But one source close to Cohen, without specifying any conversation or naming Trump himself, says there are "definitely all kinds of tapes out there." Two other sources said that beyond the tape with the President there were other recordings of "powerful" people speaking with Cohen that the FBI seized.

At this point, Cohen has not has any conversations with prosecutors in the Southern District of New York, one source says. But lately Cohen has gone out of his way to distance himself from the President, tweeting shade about the president's Helsinki performance. In a CNN story earlier this month, a source close to Cohen indicated that "the truth is not you or your client's friend." The source also said that Cohen "is no longer taking a bullet for you (Trump), is no longer a flunky," calling his declaration of independence "his July 4th moment."

Mississippi Coronavirus Cases

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Confirmed Cases: 113081

Reported Deaths: 3231
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Harrison490283
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Lee349079
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Jones285384
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Monroe146572
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Pike137256
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Marshall136226
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Scott123829
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Winston82621
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Hancock78727
Attala78126
Clarke72750
Clay68421
Jasper67417
Walthall63327
Calhoun61812
Noxubee59617
Smith58516
Claiborne53416
Montgomery53123
Tunica52317
Yalobusha51314
Lawrence50414
Perry48423
Carroll46812
Greene45918
Stone45514
Amite42013
Humphreys41916
Quitman4176
Jefferson Davis40011
Webster36613
Wilkinson33120
Kemper32115
Benton3194
Sharkey28014
Jefferson27110
Franklin2373
Choctaw2036
Issaquena1064
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Alabama Coronavirus Cases

Confirmed Cases: 154942

Reported Deaths: 2660
CountyConfirmedDeaths
Jefferson22720374
Mobile14405314
Tuscaloosa10066137
Montgomery9820196
Madison907894
Shelby715361
Lee646165
Baldwin644369
Marshall431048
Calhoun416059
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Houston365532
DeKalb325428
Elmore312852
St. Clair283842
Limestone273630
Walker269993
Talladega259135
Cullman231024
Lauderdale212540
Jackson205515
Autauga202130
Franklin201731
Colbert193330
Russell19053
Blount187325
Dallas186027
Chilton182632
Escambia171428
Coffee16829
Covington166629
Dale163851
Chambers133043
Pike131313
Tallapoosa129587
Clarke127317
Marion105029
Butler99840
Barbour9969
Marengo98222
Winston90613
Geneva8447
Lawrence81131
Pickens81117
Randolph80514
Bibb80114
Hale74830
Cherokee72314
Clay72212
Lowndes70228
Henry6386
Bullock63717
Monroe63610
Washington62312
Crenshaw59830
Perry5816
Wilcox55912
Fayette55713
Conecuh55613
Cleburne5327
Macon53020
Sumter46821
Lamar4595
Choctaw38712
Greene34016
Coosa1993
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