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Why Trump’s lawyers allowed investigators to get ahold of Michael Cohen tapes



Michael Cohen and Donald Trump
Michael Cohen and Donald


  • President Donald Trump’s lawyers waived privilege over
    12 audio recordings seized by the FBI from his former longtime
    lawyer Michael Cohen.
  • One source with knowledge of the Trump team’s decision
    making said the lawyers did so because they claim Cohen was
    discussing the tapes with others, such as Michael Avenatti, the
    attorney for porn star Stormy Daniels.
  • In a tweet, Cohen’s attorney Lanny Davis denied that
    Cohen discussed any recordings with Avenatti. 

Eyebrows were raised over the weekend after multiple outlets
reported that President Donald Trump’s lawyers waived privilege
claims over a bombshell tape seized by the
FBI from his former longtime attorney Michael Cohen that
contained a conversation between the two about payments made to
ex-Playboy model Karen McDougal.

That meant the tape could be handed over to the federal
investigators probing Cohen for a slew of potential crimes.

Even more surprising was the news that broke on Monday. Special
master Barbara Jones wrote in a court filing to US District Judge
Kimba Wood that privilege claims were withdrawn over 12 audio
tapes seized from Cohen — an action that could’ve been taken by
either Cohen, Trump, or the Trump Organization. It’s unclear who
appears on those 12 tapes, or if the tape revealed on Friday was
among them.

As special master, Jones is tasked with overseeing the document
review for privilege designations in the ongoing Cohen
investigation taking place in the Southern District of New York.
Because the parties released their privilege claims over the
tapes, they too have been turned over to federal investigators
probing Cohen, she wrote.

A person with knowledge of the Trump team’s decision making on
the matter told Business Insider the president’s attorneys waived
their privilege claims over all of the tapes because they claim
Cohen had been discussing them with others, such as Michael
Avenatti, the attorney for porn star Stormy Daniels, who is suing
the president and Cohen. 

The person said Trump’s legal team didn’t know “exactly what
Cohen” has told others, but added that the lawyers “have the
tapes” and “heard them all.” Trump’s attorneys “don’t have any
problem with anybody listening to them,” the source said, adding
that the remaining tapes disclosed Monday contain conversations
between Cohen and a third party about Trump, not direct
discussions between Trump and Cohen.

Trump’s lawyers waived privilege so they could speak freely about
the tapes, now that they claim Cohen is separately speaking about
them, the person said. The person said waiving the privilege was
“inevitable” and that they “didn’t know how it was coming out”
but “knew Cohen was the source.”

Avenatti’s Sunday comments on ABC’s “This
Week” further
confirmed the Trump team’s thoughts, the person

Avenatti, who crossed paths with Cohen at a
Manhattan restaurant
last week, said Sunday that he has
“continued to have a dialogue” with Cohen. Avenatti added he
believes Cohen will “assist us in our search for the truth.”

Of note, Avenatti first mentioned the existence of
such tapes
in May.

On that ABC News panel, Harvard law professor Alan Dershowitz
questioned why Avenatti had knowledge of additional Cohen
recordings. Dershowitz said that if
additional tapes existed, they would be protected by
attorney-client privilege and that Cohen is “not allowed to
cooperate with anybody if there’s lawyer-client privileged

“All of the information that the FBI seized, that’s not under
lock and key,” Avenatti responded. “The only way that it would be
improper for me to have it is if I got it from the FBI or
somebody in law enforcement. There’s a host of other ways I could
have obtained that information. … I could have received it from
Michael Cohen, I could have received it from Michael Cohen’s
counsel, I could have received it from others.”

That comment led to a tweet from Lanny Davis, Cohen’s attorney,
denying that his client provided Avenatti with information about
the recordings.

Avenatti declined comment to Business Insider. Davis and
Dershowitz did not immediately respond to requests for comment
from Business Insider.

The first tape

The back-and-forth followed the revelation of one such
on Friday when The New York Times
 that Cohen
 a conversation with Trump just two
months ahead of the 2016 election in which they discussed
payments to McDougal.

The National Enquirer purchased McDougal’s story of an alleged
affair with Trump for $150,000 in August 2016. But the outlet
never published the piece. That practice is known as “catch and
kill,” and it effectively silenced McDougal’s allegations.
Federal investigators had sought documents in the Cohen raids
related to that payment and similar payments to other women.

David Pecker, the head of American Media Inc., which
publishes the National Enquirer, is a longtime friend of both
Trump and Cohen. Citing a person familiar with the

The Washington Post reported

 that Cohen and Trump discussed a plan to
purchase the rights to McDougal’s story from Pecker’s company for
about $150,000.

Rudy Giuliani
Rudy Giuliani.

Trump’s personal attorney, Rudy Giuliani, confirmed to The Times
that Trump discussed payments to McDougal with Cohen, but he said
that ultimately no payment was made. Giuliani said the recording
was less than two minutes long, and that there was no indication
based on it that Trump knew of the payment to American Media Inc.

Giuliani said Trump told Cohen that if he did pay McDougal, it
should be in the form of a check instead of cash so that it could
be properly recorded, The Times reported.

Meanwhile, a source told CNBC that waiving the
privilege claim over that tape provided Giuliani the ability to
release “his version of the tape’s contents.” Giuliani confirmed to NBC News that
Trump’s team waived the privilege protections over that

Other reporting has differed from Giuliani’s description of the
tape. CNN reported, citing a source
familiar with the recording, that when Trump was informed about
the tape he said he couldn’t “believe Michael would do this to

In a Friday evening tweet, Davis
 the recording “will not hurt” Cohen
once it is heard.

Another explanation for why Trump’s team waived their privilege

Attorneys said there were reasons beyond what those close to
Trump’s legal team provided as rationale for waiving the

For instance, as criminal defense attorney Ken White explained to
Business Insider, if Trump’s team asserts privilege over the
tape, the government can try to overcome that privilege by
asserting what is known as the “crime/fraud exception” to
privilege claims. Simply put, a client’s communication to an
attorney cannot be privileged if the communication was made with
the intention of committing or covering up a crime or

“A public battle over the exception — a public assertion that
Trump consulted Cohen to commit fraud or crime — would be
terrible publicity, and a judicial finding would be worse,” White
said. “So maybe Trump withdrew the attorney-client privilege
assertion to avoid that fight.”

“For now the tape isn’t public,” White continued. “It’s more
low-key just to let the US attorney’s office have it. That
implies that them getting it is less bad than the public debate
over it would be — so it may not be very exciting.”

Roland Riopelle, a partner at Sercarz & Riopelle
who was formerly a federal prosecutor with the US Attorney’s
Office for the Southern District of New York, told Business
Insider that he believes the Trump team knew this tape would fall
within the crime/fraud exception.

“To my mind, the confirming proof of all this is the fact that
Trump is not releasing the tape itself. If the tape was so darn
good for him, why wouldn’t he let the media have it?” Riopelle
said. “Instead, he is describing it and spinning it so that he
controls the narrative.”

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