Famed lawyer Alan Dershowitz discussed a “theory” Wednesday, one day after meeting with President Trump, about how the “Hollywood Access” tape was illegally recorded.
In that tape from 2005, which surfaced during the 2016 election, Trump could be heard talking with former “Today” show host Billy Bush on a bus, via hot mic, about groping women without their consent.
The Washington Examiner reports,
Dershowitz said during a panel on CNN that because California, where the exchange took place, is two-party consent state, the taping was illegal.
Host Anderson Cooper noted that they were wearing microphones, but Dershowitz dismissed that as being a disqualifier.
“But they didn’t know it was on. That was the question,” he said.
The “Hollywood Access” tape was dredged up again this week after FBI agents raided the hotel room and office of Trump’s lawyer Michael Cohen. Among the documents they took, agents confiscated records related to the tape as well as adult film star Stormy Daniels, who alleges she had an extramarital sexual encounter with Trump.
— Anderson Cooper 360° (@AC360) April 12, 2018
Dershowitz imagined a hypothetical conversation about what Trump may have said to Cohen about the “Access Hollywood” tape and may be in the documents obtained by FBI agents.
“I can imagine the conversation,” he said. “Trump calls his lawyer, Cohen, and says, ‘Stop this tape. It’s illegal. I didn’t consent to it. I didn’t know the microphone was on. Stop it. Use all legal means.'”
He said the documents would now go through a government “taint team,” which would determine if some of the material is, for example, protected by attorney-client privilege.
The prospect of a lawsuit over the “Access Hollywood” tape has been raised before, by Trump himself.
Back in 2016, during an interview with former Fox News host Bill O’Reilly, Trump said NBC releasing the tape was an “illegal act” and expressed a willingness to sue.
Robert Barnes, California-based attorney, said at the time Trump may have a case and explained how the hot mic audio could be illegal.
Dershowitz warned on Monday that the FBI raid was an assault on the privileged lawyer-client relationship and served as a sign that special counsel Robert Mueller, who is investigating whether the Trump campaign colluded with the Russians, is trying to turn Cohen against Trump.
Dershowitz met with Trump and other White House officials on Tuesday. He claims his visit was prearranged and regarded the ongoing peace process in the Middle East, but has refused to open up on any other matters that may have been discussed.
Dershowitz has been one of Trump’s staunchest defenders on TV in recent months.
During the CNN panel on Wednesday, Norman Eisen, a one-time Obama White House ethics lawyer and chairman of Citizens for Responsibility and Ethics in Washington, offered counter-points to Dershowitz’s comments, but did concede Dershowitz might be right about the raid.
“You just heard the world’s smallest violin playing for Alan’s argument,” he said. “Why? We can have confidence that this seizure of records was reviewed at the Justice Department, at the staff level. Then by [Deputy Attorney General] Rod Rosenstein, then it was sent over to the U.S. Attorney’s office and reviewed again by the public corruption unit here. It could be that Alan is right.”
Cooper interjected: “And a judge would have signed off on this search warrant.”
Eisen added that judicial permission would be needed and that the “prosecution has powerful reasons” for the raid.
Prosecutors are looking at a “pattern of illegal conduct,” including allegations of threats made against Daniels to keep silent about her alleged tryst, Eisen said.
Eisen also argued that he doesn’t expect any leaks from the FBI raid, to which Dershowitz scoffed: “Boy I got a bridge to sell you in Brooklyn. No leaks? Oh my God, a leak? It sounds like a scene from ‘Casablanca.’ Leaking is pervasive.”