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Trump is Wrong - Cohen's Recording Is Not Illegal
Tape Probably Could Be Used As Evidence by Prosecutors, Others
In a very recent Tweet, Trump opined that "Even more inconceivable that a lawyer would tape a client — totally unheard of & perhaps illegal."
But federal law - 18 U.S.C. 2511(2)(d) - permits the recording of telephone conversations so long as at least one of the parties to the call consents. Since Cohen was a party to the call, his recording did not violate federal law.
New York, like most states, is also a one-party consent state, which means that it is likewise legal under New York law for any person to record his own telephone calls. Thus, under N.Y. Penal Law 25 §§ 250.00, 250.05, Cohen's recording of his call was not illegal.
However, some have suggested that, even if it isn't a crime, it may be unethical for a lawyer to surreptitiously record a telephone conversation with a client. If so, this could subject Cohen to possible attorney discipline.
But in 2001, the American Bar Association, in Formal Opinion 01-422, reversed the position it had formerly taken in Opinion 337, and held that such recordings by a lawyer are not unethical.
More specifically it ruled that "where nonconsensual recording of conversations is permitted by the law of the jurisdiction where the recording occurs, a lawyer does not violate the Model
Rules [of attorney ethics] merely by recording a conversation without the consent of the other parties to the conversation."
As a result, as the Congressional Research Service [CRS] reported in 2012, a "substantial number of states, however, agree with the ABA's Formal Opinion 01-422 that a recording with the consent of one, but not all, of the parties to a conversation is not unethical per se unless it is illegal or contrary to some other ethical standard. This is the position of the bar in Alabama, Alaska, Hawaii, Minnesota, Missouri, Nebraska, New York, Ohio, Oregon, Tennessee, Texas, Utah, and Vermont."
Thus it appears that Cohen's actions in recording one or more of his telephone conversations with his then-client Trump was neither illegal nor unethical, so there would seem to be no bar to their introduction is any court proceeding, criminal or civil, nor even in any possible impeachment proceedings, says Banzhaf.
Indeed, even if such a recording were illegal, it would probably not make such a tape recording inadmissible under the "fruit of the poisonous tree" legal doctrine, since that exclusionary rule applies only when the government, or a private party acting at the time as the behest of the government, engages in wrongdoing.
Here there is no evidence that Cohen, at the time the recording was made, was acting as a agent for the government. The fact that subsequently a tape he made was lawfully seized by the government, or even supposing that Cohen decides to voluntarily turn over more such tapes to the government, does not make them inadmissible, suggests Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418