Omarosa and the secret taping game

Over the past 40 years or so, one imagines that some significant — maybe insecure —  donor has quietly tape-recorded a president’s over-the-phone birthday greetings, so he can one day impress his grandkids. Not illegal, depending on the state in which he did the taping, but probably not ideal in any jurisdiction. Yes, the U.S. president surely would know that the birthday boy would repeat the conversation to everyone he can, but the president wouldn’t expect the kind of privacy invasion implicit in having his phone call taped, even by a friend.  

Now, even though Richard Nixon famously taped conversations with nearly everyone in Oval Office without telling them, as did a number of his predecessors, we’ve never had reason to believe that White House staffers actually have taped a president. And, as discussed below, although people didn’t need to rely on precedents from the White House, secret taping simply has become rampant. So, along comes Omarosa Manigault-Newman.

{mosads}This article is not about why there has been a culture in the White House that would encourage Omarosa — and maybe others as well — to record the most powerful man in the world and his chief of staff. Nowadays, audio taping, and videotaping, is all over the place. Pretty much everyone carries a recording device wherever they go. They’re “packing” to tape a police officer who stops them for a speeding violation, an elementary school softball coach who is too tough on their kid, or a spouse suspected of infidelity.

And if the conversation occurs in a state such as New York, for example, which allows secret recordings without the consent of the person being recorded (provided the one who records is a participant in the conversation), it is perfectly legal. And yes, it was legal for Omarosa to have recorded President Trump, even if he was sitting in the Oval Office when he spoke with her by phone, despite his or anyone’s belief that recording the president in the White House was unthinkable.   

Twelve states make so-called “one-party recording” flatly illegal. Although prosecutions for recordings do occur from time to time — remember Linda Tripp, Monica Lewinsky’s confidante who was prosecuted in Maryland (although the case later was dismissed) for illegally taping Lewinsky’s emotional confession of  her semen-stained dress caper? — such prosecutions are rare.

But where does the Omarosa chronicle take us? Maybe not too far. Looking at it without allowing ideology or politics to interfere, she is clearly a villain — which means, surprising as it seems, the president is an unlikely victim. This, even though, among many other things, it appears he lied to her during their conversation saying he didn’t know she was being fired.

Who would have believed President Trump could present as a victim? After all, he’s now calling her names, and she certainly presents as a scoundrel for having done what she did — sort of like what Michael Cohen, the president’s former lawyer, did? Yes, Cohen is worse in some way because, as a lawyer, he may have violated the lawyers’ code of conduct by having the temerity to tape his client without disclosing that he was doing so. And while there may indeed be a penalty (disciplinary, in this case) for a lawyer taping an unwitting client and, under certain circumstances, non-clients as well, there is no penalty for a non-lawyer who tapes another person, either on the phone or in person, except in a state (such as Maryland) that criminalizes it.

Typically, even people who are inclined to tape, don’t record conversations surreptitiously unless they have some reason to believe that the person being taped is up to no good, or potentially up to no good — for example, they are intending to sue or threaten; they will deny they said what they said; or they’re about to welch on some financial obligation. Others who may tape are those who may not be able to credibly assure others they are telling the truth when they disclose what the other person said.

For sure, if a person of consummate integrity, such as the pope, were to report a conversation with a political or religious opponent or, for that matter, with anyone, people likely would believe him. No tape needed. But Omarosa? She taped conversations knowing she has a severe credibility problem, and the administration easily could rebut anything she might write in her memoir.  

Maybe there’s only one way to deal with all of this. The public recognizes that even when legal, secret recording is wrong, maybe even despicable. In the wake of Watergate, strong measures went into effect to discourage the abuses that took place during that episode in American history. Maybe Omarosa — and anyone else who may have been taping the president and/or his staff — will have done us all a big favor. Maybe it’s time for the many states that allow one-party recordings to change their laws. Maybe the law across the United States should simply be: if you want to record a conversation, you must get the consent of the person you are taping.

In our divisive America today, it might feel as if taping everyone with whom you come in contact is the safest thing to do — but that’s a terrible way to live, a terrible way to think.

But if you are concerned that those with whom you speak later will lie (and you do not have the reputation to overcome an attack on your credibility), the alternative would be to never say anything that you might someday have to defend. And how possible would that be?  

Omarosa deserves sympathy from no one. But maybe, if her sordid conduct in taping for the purpose of selling a book (however she tried to dress it up) becomes the impetus for changing state laws and ending the odious practice of secret taping, she may someday earn our reluctant thanks.  

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”