Billy Bush and “Access Hollywood” are back in the news. Yesterday, The New York Times reported that the search warrant for the office of President Trump’s lawyer, Michael D. Cohen, contained references to the infamous “Access Hollywood” tape. Unless you were living under a rock, you remember that shortly before the 2016 election, a tape was made public in which Trump made comments to Bush that when you’re famous you can do anything, including “grab” women by the—well, you know the rest.
It was previously reported that the FBI was seeking records on a $130,000 payment to Stormy Daniels, a woman who depicts sex onscreen for pay. Together with the news about the “Access Hollywood” tape, it seems that, at least partly, the Southern District of New York investigation is focused on payments that may have been made to silence potentially damaging information during the 2016 presidential campaign. That’s where the Federal Elections Campaign Act of 1971 (FECA) comes into play.
In addition to reporting contributions, FECA also requires political campaigns to report expenditures. Thus, the feds may be looking into payments (perhaps as part of a pattern) Cohen made to prevent the disclosure of information that could have negatively affected Trump’s campaign. The legal theory would be that such payments were also “in-kind contributions” that should have been reported under FECA.
Indeed, in January 2018, a complaint was filed with the Federal Elections Commission against Donald J. Trump for President Inc. and The Trump Organization regarding the $130,000 payment to Daniels. While the “Access Hollywood” tape eventually became public, one wonders if there were efforts to pay for its non-release.
There are still a lot of unknowns, and it’s unclear at this time if a crime was committed. The added layer, however, is what, if anything, Trump knew about any such alleged efforts to pay “hush money” during the 2016 election. Several days ago, the president said he knew nothing about the $130,000 payment to Daniels. With the seizure of Cohen’s computers and files, the feds now potentially have in their possession communications between Cohen and Trump.
Now, you might be screaming, “What about attorney-client privilege? How can the feds just look at communications between Trump and his lawyer?”
I previously wrote about the “taint team” that reviews potentially privileged materials in these kinds of law enforcement raids. While ordinarily they will separate privileged materials that the prosecuting attorneys never see, they will also likely have a separate category of materials that may be exempt from privilege under the “crime-fraud exception.”
Essentially, privilege is moot for communications between an attorney and a client that are used to further a crime. Simply talking about a crime isn’t enough, though. The communications themselves must be “in furtherance” of a crime. Needless to say, if there are indictments, expect a lot of litigation over this issue.
One final thought. If this really is all about failure to disclosure payments that may fit the definition of in-kind contributions, this long-time criminal defense lawyer wonders if the SDNY and FBI’s actions were entirely appropriate. A raid on an attorney’s office is not a common occurrence. While undoubtedly a subpoena would have met claims of privilege, this is looking more and more like a fishing expedition.
Forget Russia. The drama is much closer to home.