Fox News chief judicial analyst Andrew Napolitano on Wednesday weighed in on a newly released audio tape of a conversation between President Donald Trump and his former personal attorney Michael Cohen, explaining that the conversation could constitute proof of fraudulent behavior and jeopardize Trump’s attorney-client privilege.
During an interview on Fox News, Napolitano explained why the secretly recorded tape could be concerning for Trump and his associates.
“There is an indication of a fraud,” Napolitano said. “And the significance of that is, if the client and the lawyer discuss the commission of a crime, or discuss the commission of a fraud, there is no attorney-client privilege in that conversation. Meaning the tape can be used by anybody who can get their hands on it for any purposes.”
Watch Andrew Napolitano’s analysis of the Cohen tapes on Fox News below:
The tape seems to show then-candidate Trump and Cohen discussing payments to former Playboy model Karen McDougal to keep her quiet about an alleged affair with Trump, although there’s been some dispute about what exactly was said due to the poor quality of the recording.
Napolitano warned that if the topic of the conversation can be verified, it would invalidate attorney-client privilege, which usually protects information exchanged between lawyers and their clients.
Without any claim to attorney-client privilege, investigators — including those working on special counsel Robert Mueller’s Russia investigation — would have free reign to examine a slew of documents and tapes about Trump and Cohen’s business dealings.
Napolitano explained that the potential fraud associated with the payments to McDougal would only be a civil fraud, which is less serious than a criminal fraud because McDougal wasn’t tricked into losing money. But it still poses a major problem for Trump.
“Both civil fraud and criminal fraud are enough to burst the attorney-client privilege,” Napolitano explained.
Trump hit back against Cohen on Wednesday for secretly recording some of their conversations, and he suggested that the tape was doctored to omit positive comments he made at the time.