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Trump lashes ex-lawyer, says taping of client 'perhaps illegal'

  • Published at 09:30 am July 22nd, 2018
Trump Cohen
US President Donald Trump, right, has said his former lawyer Michael Cohen, left, may have illegally recorded a conversation about an alleged affair AFP

Cohen has not yet been arrested or charged with any crime. But his cooperation with the government could prove vital to prosecutors

US President Donald Trump lashed out at his former lawyer on Saturday, saying Michael Cohen may have acted illegally in secretly taping their discussion about a payment to hush up an alleged affair with a Playboy model.

Trump's early-morning tweet was his first direct reaction to a New York Times report Friday that the FBI had seized the recording during an April raid on Cohen's office amid an investigation of possible Trump campaign collusion with Russia.

Cohen has not yet been arrested or charged with any crime. But his cooperation with the government could prove vital to prosecutors -- a scenario that could be made more likely by an open split with Trump.

While Cohen was once quoted as saying he would "take a bullet" for the president, Trump's tweet and the sharp reply from Cohen's lawyer Lanny Davis could signal that the bond between the two has been damaged, if not broken.

"Inconceivable that the government would break into a lawyer's office (early in the morning) - almost unheard of," Trump tweeted Saturday.

"Even more inconceivable that a lawyer would tape a client - totally unheard of & perhaps illegal.

"The good news is that your favorite President did nothing wrong!"

Former Playboy model Karen McDougal claims she had an affair with Trump after they met in 2006, shortly after Trump's wife Melania gave birth to their son Barron. She told CNN previously that he tried to pay her for sex.

The Wall Street Journal said the recorded September 2016 conversation between Trump and Cohen was about buying the rights to McDougal's story, which she had sold a month earlier to The National Enquirer for $150,000.

The tabloid never published the story. The chairman of its parent company, American Media, is a friend of Trump.

Rudy Giuliani, Trump's current personal attorney, confirmed to the Times that the Cohen tape existed, but said it showed the president had done nothing wrong. He called it "exculpatory" because it showed Trump had no advance knowledge of a possible payment.

None in fact was made.

But Davis tweeted on Saturday that Trump and Giuliani's strategy in the matter was "flawed; just as is #Trump's false #Twitter statement made against" Cohen.

Ethical issues

The reports raise questions about why Trump's campaign denied knowledge of the deal between McDougal and American Media when it became public, and they have fanned speculation about how much damage Cohen might be able to inflict on the president.

Regarding Trump's claim of illegality, New York state law permits the recording of a phone call or an in-person conversation as long as one party consents, according to attorney John B. Harris, who authored an article on the subject for the New York Legal Ethics Reporter.

Yet "it remains murky whether and when a New York lawyer can ethically tape without advance disclosure," Harris said.

Stephen Gillers, an authority of legal ethics and professor at New York University School of Law, told The American Lawyer in April that such recordings are "an issue on which the national profession has not come to common agreement," but he argued that law firms should forbid the practice except in very narrow circumstances.

McDougal and Daniels

The FBI raided Cohen's home and office on a referral from special counsel Robert Mueller, who is looking into Russian interference in the 2016 election and whether the Trump campaign colluded with Moscow.

Trump has repeatedly criticized the probe, a theme he returned to on Saturday.

The investigation "seems intent on damaging the Republican Party's chances in the November Election," Trump tweeted, referring to the upcoming midterm congressional polls.

"No Collusion, No Obstruction - but that doesn't matter," Trump wrote.

The Justice Department says Cohen has been under investigation for months for criminal conduct largely centered on his personal business dealings.

Prosecutors are apparently interested in payments he made on Trump's behalf to porn actress Stormy Daniels, and other business dealings related to Trump.

Daniels and McDougal allege they had affairs with Trump around the same time, in 2006.

Cohen, who became Trump's personal lawyer in 2007, paid $130,000 to Daniels -- real name, Stephanie Clifford -- shortly before the 2016 election to keep her quiet about her alleged affair with Trump.

Her lawyer, Michael Avenatti, told MSNBC Saturday the Cohen recording put Trump in an uncomfortable legal position because it was evidence he may have broken campaign finance law.

"If Donald Trump knew that Michael Cohen was going to be making payments on his behalf, or others were going to be making payments on his behalf, in order to influence the 2016 election, that may in fact constitute evidence of direct campaign finance violations which can be criminal in nature," he said.

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