President Trump’s longtime attorney and self-described “fixer” Michael Cohen secretly recorded Trump on several occasions, turning national attention to a dozen state laws that criminalize recording conversations without consent.
The diversity of state laws creates a minefield. If Cohen taped Trump without his consent in New York, it would be perfectly legal. If Trump was on the tarmac of Joint Base Andrews in Maryland, Cohen could face five years in jail and a $10,000 fine.
Federal agents took more than 100 audio recordings in April raids of Cohen’s home and office, according to reports. In the one publicly reported recording, Trump discusses paying a former Playboy model who alleged an affair.
Cohen “liberally” recorded calls with a smartphone application, a former Trump campaign associate told the Washington Examiner. And in potentially bad news for Cohen, recording consent laws have been wielded before in presidential politics.
In the late 1990s, 49 Democrats in Maryland’s legislature successfully demanded prosecution of Linda Tripp for taping calls with White House intern Monica Lewinsky, whose affair with President Bill Clinton led to his impeachment.
There’s a seemingly haphazard divide among states, with no apparent geographic or ideological commonality to recording laws. The diversity is difficult to explain, but locals appear to defer to their jurisdiction’s historical status quo.
In Pennsylvania, the state’s recording law took a public relations beating when a mentally disabled teen was convicted in 2014 of recording school bullies without their consent. The law, however, retained support as prosecutors backed down on appeal.
“The DAs have to be smart and use their discretion,” said Andy Hoover, communications director of the American Civil Liberties Union of Pennsylvania.
Hoover, who supports the law, said he’s surprised more states haven’t adopted all-party consent with the spread of smartphones capable of sly recordings.
“Now, everyone’s carrying a recorder in their pockets,” Hoover said. “Without all-party consent, people are really vulnerable in private moments.”
In Illinois, meanwhile, state lawmakers overwhelmingly passed a law in 2014 requiring the consent of all parties, after a court struck down a previous law because it didn’t have a carve-out for recording police in public. In April, a 13-year-old student was charged with a felony for recording a conversation with his principal and assistant principal.
UCLA law professor Eugene Volokh said “I’m not a fan of the laws, but I think that it’s not surprising that they do have their fans.”
“I think that more people can envision themselves being the victim of such recordings than being the beneficiary,” Volokh said.
Other all-party consent states include Florida, Nevada, New Hampshire and Montana.
Efforts to expand the map have been resisted. In Utah, a bill drafted this year at the behest of Mormon church leaders to require recording consent from all parties received stiff backlash.
“It does appear that this original concept was universally hated,” said state Sen. Todd Weiler, the Republican sponsor of the Utah bill. Weiler told the Washington Examiner he doesn’t know why the idea is popular some places, but not others.
If any of Cohen’s recordings violate a state law, they could be used to coerce his cooperation, attorney Anthony Zaccagnini recently told the Washington Examiner.
Zaccagnini, who defended Tripp in Maryland, said if Cohen broke any state laws, he should seek an immunity deal. Tripp had such a deal in the Lewinsky case, he said, forcing local authorities to prove they learned of tapes from a source other than the federal probe. That caused the Tripp case to fall apart.
Cohen may find himself besieged as details emerge, Zaccagnini predicted, noting that Cohen has distanced himself from Trump.
“You got a blue state, they may want to make hay out of it,” he said. “And vice versa, actually. If you have a Republican state, they may want to go after Cohen.”
