Michael Ejercito
2018-07-27 11:51:20 UTC
Who Leaked the Trump Tape?
by Alan M. Dershowitz
July 26, 2018 at 6:00 pm
https://www.gatestoneinstitute.org/12767/who-leaked-the-trump-tape
The reason this is important to all Americans, beyond the immediate parties
to this taped conversation, is that it may well discourage clients,
patients, penitents and others from confiding in their lawyers, doctors,
priests and the professionals who promise them confidentiality.
Cohen promised confidentiality and yet the world heard what his client
confided in him.
Obviously, people who are willing improperly to leak confidential material
may also be willing to lie about it under oath, but the consequences of
lying under oath are greater than leaking, since leaking is not a crime but
perjury is.
Someone leaked the lawyer/client confidential tape containing a conversation
between President Donald J. Trump and his lawyer Michael Cohen. A former
judge, assigned by the presiding judge to evaluate the seized tapes,
reportedly concluded that this conversation was privileged. Yet someone
leaked their contents. The President Trump's current lawyer, Rudy Giuliani,
then waived the privilege as to that tape. He said he never would have
waived it had its existence and content not been improperly leaked.
So, the question remains: Who leaked this privileged material? If it was
anyone in the Trump camp, there would be no violation of confidentiality, as
the privilege belongs to the client, namely Trump, who can waive it. But no
one else, most especially his lawyer, may properly waive the privilege. And
Giuliani has categorically denied that it was leaked by Trump or anyone on
his behalf. Indeed, he has expressed outrage at the leak.
Whom does that leave? Cohen is an obvious suspect, although I am confident
that his excellent and experienced lawyer, Lanny Davis, would not have done
so. Perhaps Cohen himself, who ran into Michael Avenatti at a restaurant,
told him about the tape. We simply do not know.
Pictured: Michael Cohen, (left) former personal lawyer for President Donald
Trump, exits the United States District Court in New York on May 30, 2018.
(Photo by Eduardo Munoz Alvarez/Getty Images)
It is unlikely that any judicial or prosecutorial authority is responsible
for the leak, because they would have more to lose than to gain if they were
caught.
The reason this is important to all Americans, beyond the immediate parties
to this taped conversation, is that it may well discourage clients,
patients, penitents and others from confiding in their lawyers, doctors,
priests and the professionals who promise them confidentiality. Cohen
promised confidentiality and yet the world heard what his client confided in
him. We know he recorded the confidential conversation without the knowledge
of his client. That is bad enough. Then it was deliberately leaked by
someone who must have believed he or she would reap some benefit or
advantage from having the public hear it.
We must find out who is the source of this damaging leak — damaging to all
Americans who place their faith in the promise of confidentiality from the
professionals in whom they confide.
It is an ethical violation, subject to serious sanctions including
disbarment, for a lawyer to disclose, or cause to be disclosed, privileged
conversations. And for good reason. The obligation of a lawyer not to
disclose confidential information is codified in Rule 1.6 of the New York
Bar. This broad rule prohibits, subject to exceptions not present in this
case, any knowing disclosure of confidential information. That plainly
covers the kind of conversation we have all now heard in the leaked tape:
namely, the discussion between Trump and his attorney as to how to deal with
a potential messy problem. We may not like the subject matter under
discussion, but it is fully covered by the privilege, as the former Judge
rightly found. That is why this leak is so difficult to fathom. The risks to
the leaker are greater than any short-term benefit. But the fact remains
that the leak occurred, and now it is imperative that the leaker be exposed
and held to account.
This can be accomplished in several ways. Judge Kimba Wood, who is presiding
over the matter, could hold a hearing in which the potential suspects are is
placed under oath and asked the simple question whether they leaked the
contents of the tape and/or whether they know who the leaker was. Obviously,
people who are willing improperly to leak confidential material may also be
willing to lie about it under oath, but the consequences of lying under oath
are greater than leaking, as leaking is not a crime but perjury is.
Notwithstanding the importance of this issue, there seems to be little
interest among the participants in determining who leaked the tape. There
has been no call for an investigation. Perhaps this is because both sides
think they benefited from the leak. I leave that to the public, and
eventually the courts, to determine. What is clear is who was hurt by the
leak: all Americans who rely on confidentiality – which means all of us –
were hurt when the world was allowed to listen to a lawyer/client privileged
conversation, that no one except the participants should ever have heard.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at
Harvard Law School and author of "The Case Against Impeaching Trump",
Skyhorse Publishing, 2018.
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by Alan M. Dershowitz
July 26, 2018 at 6:00 pm
https://www.gatestoneinstitute.org/12767/who-leaked-the-trump-tape
The reason this is important to all Americans, beyond the immediate parties
to this taped conversation, is that it may well discourage clients,
patients, penitents and others from confiding in their lawyers, doctors,
priests and the professionals who promise them confidentiality.
Cohen promised confidentiality and yet the world heard what his client
confided in him.
Obviously, people who are willing improperly to leak confidential material
may also be willing to lie about it under oath, but the consequences of
lying under oath are greater than leaking, since leaking is not a crime but
perjury is.
Someone leaked the lawyer/client confidential tape containing a conversation
between President Donald J. Trump and his lawyer Michael Cohen. A former
judge, assigned by the presiding judge to evaluate the seized tapes,
reportedly concluded that this conversation was privileged. Yet someone
leaked their contents. The President Trump's current lawyer, Rudy Giuliani,
then waived the privilege as to that tape. He said he never would have
waived it had its existence and content not been improperly leaked.
So, the question remains: Who leaked this privileged material? If it was
anyone in the Trump camp, there would be no violation of confidentiality, as
the privilege belongs to the client, namely Trump, who can waive it. But no
one else, most especially his lawyer, may properly waive the privilege. And
Giuliani has categorically denied that it was leaked by Trump or anyone on
his behalf. Indeed, he has expressed outrage at the leak.
Whom does that leave? Cohen is an obvious suspect, although I am confident
that his excellent and experienced lawyer, Lanny Davis, would not have done
so. Perhaps Cohen himself, who ran into Michael Avenatti at a restaurant,
told him about the tape. We simply do not know.
Pictured: Michael Cohen, (left) former personal lawyer for President Donald
Trump, exits the United States District Court in New York on May 30, 2018.
(Photo by Eduardo Munoz Alvarez/Getty Images)
It is unlikely that any judicial or prosecutorial authority is responsible
for the leak, because they would have more to lose than to gain if they were
caught.
The reason this is important to all Americans, beyond the immediate parties
to this taped conversation, is that it may well discourage clients,
patients, penitents and others from confiding in their lawyers, doctors,
priests and the professionals who promise them confidentiality. Cohen
promised confidentiality and yet the world heard what his client confided in
him. We know he recorded the confidential conversation without the knowledge
of his client. That is bad enough. Then it was deliberately leaked by
someone who must have believed he or she would reap some benefit or
advantage from having the public hear it.
We must find out who is the source of this damaging leak — damaging to all
Americans who place their faith in the promise of confidentiality from the
professionals in whom they confide.
It is an ethical violation, subject to serious sanctions including
disbarment, for a lawyer to disclose, or cause to be disclosed, privileged
conversations. And for good reason. The obligation of a lawyer not to
disclose confidential information is codified in Rule 1.6 of the New York
Bar. This broad rule prohibits, subject to exceptions not present in this
case, any knowing disclosure of confidential information. That plainly
covers the kind of conversation we have all now heard in the leaked tape:
namely, the discussion between Trump and his attorney as to how to deal with
a potential messy problem. We may not like the subject matter under
discussion, but it is fully covered by the privilege, as the former Judge
rightly found. That is why this leak is so difficult to fathom. The risks to
the leaker are greater than any short-term benefit. But the fact remains
that the leak occurred, and now it is imperative that the leaker be exposed
and held to account.
This can be accomplished in several ways. Judge Kimba Wood, who is presiding
over the matter, could hold a hearing in which the potential suspects are is
placed under oath and asked the simple question whether they leaked the
contents of the tape and/or whether they know who the leaker was. Obviously,
people who are willing improperly to leak confidential material may also be
willing to lie about it under oath, but the consequences of lying under oath
are greater than leaking, as leaking is not a crime but perjury is.
Notwithstanding the importance of this issue, there seems to be little
interest among the participants in determining who leaked the tape. There
has been no call for an investigation. Perhaps this is because both sides
think they benefited from the leak. I leave that to the public, and
eventually the courts, to determine. What is clear is who was hurt by the
leak: all Americans who rely on confidentiality – which means all of us –
were hurt when the world was allowed to listen to a lawyer/client privileged
conversation, that no one except the participants should ever have heard.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at
Harvard Law School and author of "The Case Against Impeaching Trump",
Skyhorse Publishing, 2018.
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