Michael Cohen’s secret tape was originally deemed ‘privileged’ – but Trump’s team blabbed about it anyway: Source

  • President Donald Trump blasted his former lawyer Michael Cohen for secretly recording him, suggesting that doing so may have been illegal.
  • But it was Trump's own legal team that decided to release a tape of the two men discussing a possible payment to a Playboy model, which had been deemed "privileged" in a federal court, a source with knowledge told CNBC.
  • "Very foolish strategy by Team Trump," the source added.
Rudy Giuliani, attorney for U.S. President Donald Trump, arrives for the White House Sports and Fitness Day event on the South Lawn of the White House in Washington, May 30, 2018.
Leah Mills | Reuters
Rudy Giuliani, attorney for U.S. President Donald Trump, arrives for the White House Sports and Fitness Day event on the South Lawn of the White House in Washington, May 30, 2018.

President Donald Trump blasted his former lawyer Michael Cohen on Saturday for secretly recording him, suggesting that doing so may have been illegal.

Yet it was Trump's own legal team that decided to release a tape of the two men discussing a possible payment to a Playboy model — which had been deemed "privileged" in a federal court, a source with knowledge told CNBC.

The source said Saturday that Trump's legal team waived the protection, which would have allowed the tape to remain hidden from prosecutors. The lawyers reached out to the judge presiding over court proceedings involving a raft of materials seized from Cohen during FBI raids in April, according to the source.

Doing so gave Trump's current lawyer, former New York City Mayor Rudy Giuliani, the ability to release "his version of the tape's contents," the source said.

"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," the source said. It was a "very foolish strategy by Team Trump," he added.

Giuliani confirmed to NBC News that Trump waived the privilege protection. “Yes, it was already out there so seemed no point in objecting except on principle," he told NBC.

Tale of the tape

The debate over the tape began Friday, when The New York Times reported that Cohen had recorded a conversation with Trump relating to model Karen McDougal, two months before the 2016 presidential election.

McDougal had sold her story – in which she alleged that she had an affair with Trump years earlier – to The National Enquirer for $150,000, before the November 2016 election. The tabloid, in a strategy reportedly known within the industry as "catch and kill," never published the story.

Giuliani told the Times on Friday that while Trump had talked about making payments with Cohen on that recording, the payment to McDougal was never actually made.

He called the tape "powerful exculpatory evidence" for Trump. But his team has not released either the recording itself, or a verbatim transcript of it, to substantiate their characterization of the conversation with Cohen.

Giuliani said that Trump had told Cohen that if he were to pay McDougal he should do so with a check, rather than cash, so that there would be record of the payment.

However, a source familiar with the recording told CNBC on Friday night that Trump had raised the idea of paying McDougal with cash. The source also said that it was Cohen who told Trump they would use a check to pay her, if they ended up making such a payment.

Lanny Davis, the newest addition to Cohen's legal team, contended on Twitter that the tape will not hurt his client.

Trump's team waived privilege

Trump, in a fiery tweet Saturday morning, bashed both Cohen and federal law enforcement. He said the seizures from the FBI raids – which is reportedly where lawyers for Cohen discovered the recording – were "inconceivable."

But the source with knowledge pushed back soon afterward, first noting that New York is a "one-party state" in which it is not illegal for a person to record someone else without stating so first. "Taping a conversation is the functional equivalent of retaining notes," the source said.

The Wall Street Journal had reported that the recording was made during a face-to-face conversation between Trump and Cohen.

The source also revealed that the tape was deemed privileged by "special master" Barbara Jones, who is reviewing all of Cohen's materials seized from the raids, in order to determine which should be granted attorney-client protections.

"In this specific instance, it was Trump who waived the privilege after special master Jones ruled the tape was privileged," the source said, adding that Trump's team contacted Judge Kimba Wood, who is presiding over Cohen's proceedings in Manhattan federal court.

Cohen, who is under investigation by federal authorities, has not been charged with a crime.

By waiving privilege protections from the tape, Trump's legal team has given federal prosecutors in Manhattan the ability to hear the tape in the criminal inquiry into Cohen, NBC News reported.

The tape was one of the relatively few items that the special master has said are privileged. Of the nearly 900,000 documents and other materials that she had reviewed, Jones ruled that just 2,633 items flagged by Cohen and Trump's lawyers are actually privileged, or partially privileged.