Special Counsel Investigations and Legal Ethics: The Role of Secret Taping

From the abstract for Peter A. Joy, Special Counsel Investigations and Legal Ethics: The Role of Secret Taping, 57 Duquesne University Law Review ___ (2019):

In July 2016, Michael Cohen, then presidential candidate Donald Trump’s lawyer, secretly recorded Trump discussing how they would use the publisher for the National Enquirer to purchase former Playboy model Karen McDougal’s story about an alleged affair with Trump in order to stop it from becoming public before the 2016 presidential election. The National Enquirer’s publisher purchased McDougal’s story in August 2016. In a similar move to quash another alleged affair from going public in October 2016, Cohen set up a corporation to purchase adult film star Stormy Daniels’s story of her affair with Trump. Trump was elected President in November 2016. Cohen’s secret recording contradicted Trump’s claims that he knew nothing about payments to McDougal, and it raises issues concerning the lengths to which Trump has gone to keep his private life a secret.

The taped conversation between Cohen and Trump later became public when Cohen’s lawyer released a copy of the tape in July 2018, which was after the Federal Bureau of Investigation (FBI) raided and seized audio tapes from Cohen’s office, home, and hotel room. It was also reported that Cohen was cooperating with Special Counsel Robert Mueller’s investigation into Russia’s interference in the 2016 presidential election and possible coordination between the Russian government and individuals associated with Trump’s presidential campaign. Reacting to the release of the tape, Trump tweeted: “Even more inconceivable that a lawyer would tape a client–totally unheard of & perhaps illegal.” Trump also tweeted: “What kind of a lawyer would tape a client? So sad! Is this a first, never heard of it before? . . . I hear there are other clients and many reporters that are taped–can this be so? Too bad!”

Contrary to Trump’s Twitter rant, this incident is not the first time a lawyer has secretly taped a conversation with a client or others. Even secret tapings involving Presidents and special counsel investigations have happened previously. Indeed, evidence that special counsels obtained through secret tapes was partially responsible for one former U.S. President to resign and another to be impeached.

Secret taping, though, raises a number of questions, including the following: Is secret taping legal? Is secret taping by a lawyer ethical? Lastly, if legal and ethical, what are the pros and cons of a lawyer secretly taping conversations? This essay sets out to answer those questions.

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