Alan Dershowitz vs. Michael Avenatti: Did Trump Himself Leak News Of Cohen Tape?

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ABC legal analyst Dan Abrams, attorney Michael Avenatti who represents Stormy Daniels in her case against President Trump, and Alan Dershowitz, professor emeritus at Harvard Law School and author of the new book "The Case Against Impeaching Trump" debate the many angles of the Trump legal drama:

STEPHANOPOULOS: Professor Dershowitz, let me begin with you.

Now this tape, reported in the New York Times, first picked up by -- by (inaudible) Washington Post on Friday, purportedly about a two minute conversation between Michael Cohen and Donald Trump September 2016, talking about buying up the rights to Karen McDougal’s story from AMI.



We’ve seen the first response from the president. He says it’s inconceivable the government would break into a lawyer’s office early in the morning, almost unheard of, even more inconceivable that a lawyer would tape a client. Totally unheard of and perhaps illegal. The good news is that your favorite president did nothing wrong.

You also heard Rudy Giuliani, the president’s lawyer say that the tape was exculpatory. Is that how you see it?

ALAN DERSHOWITZ, AUTHOR, "THE CASE AGAINST IMPEACHING TRUMP": No. I think it’s ambiguous. I don’t know who leaked it. If anybody in the Trump organization leaked it, it was for short term benefit but very, very serious long term implications. There are waiver issues involved, waiving lawyer-client privilege. Not only waiving it as to this but if there are other tapes.

It’s possible it was leaked by people within the Cohen camp. It’s unlikely it was leaked by government officials because there’s a court order and it was in the possession, essentially, of a former judge appointed by Kimba Wood. So I think the first mystery is who leaked it and what advantage did they think they were going to get from leaking it. I don’t see any particular advantage to the Trump claims based on this tape.

I think if you have something that’s positive you wait until you see the whole thing in context and then you put it out together in a systematic way. This is ambiguous evidence.

STEPHANOPOULOS: Well, I can flip that around. CNBC is reporting actually that it came from the Trump camp. But let me bring that to you, Dan Abrams. I could imagine the Trump camp would want it out, thinking bad news, get it out early.

DAN ABRAMS, CHIEF LEGAL AFFAIRS ANCHOR, ABC NEWS: Yes, and address it and Giuliani can say it’s exculpatory. But the only way that this is exculpatory is if literally President Trump is on that tape saying $150,000? Why would we want to pay her $150,000? I didn’t have a relationship with her.

(CROSSTALK)

STEPHANOPOULOS: -- AMI --

ABRAMS: Or pay (ph) AMI or anything related to Karen McDougal. I mean, you want to say exculpatory, then that’s what’s got to be on that tape, is short of shock, confusion, sort of saying why would we be paying this. And that’s not the impression that I get that’s on that tape. So the question becomes is this just a potential problem for President Trump or is there a potential legal problem. I think those are the two issues.

STEPHANOPOULOS: Correspondence is (ph) your case, Michael Avenatti, as well. I guess this was taking place a few weeks before the deal was reached with Stormy Daniels back in 2016. In both cases, the Trump camp or the (ph) Karen McDougal case, they said they knew nothing about what AMI was doing. In the first reports about the Stormy Daniels payment, it was all that Michael Cohen did it all by himself. How does this change your case?

MICHAEL AVENATTI, ATTORNEY: Well, I think it changes our case in -- in a big way, George, in that first of all, this is not the only tape. I can tell you that for a fact. There’s multiple tapes.

STEPHANOPOULOS: You don’t know that there are more tapes of President Trump, though?

AVENATTI: No, I do know there’s more tapes of President Trump. There’s multiple tapes of President Trump, number one. All right? So that -- that’s first of all. And that ultimately is going to prove to be a big problem for the president. You know, that old adage, you’ve lived by the sword, you die by the sword is going to be true in this case because the president knew that his attorney Michael Cohen had a predisposition towards taping conversations with people.

And Cohen had shared tapes with the president along the way during the 10 years of legal representation. Donald Trump knew better and it’s shocking to me that -- that he now expresses shock about being taped. So that’s number one.

Number two, this shows that the president knew that these payments were being made prior to the election, he was a participant in it, he was advising as to how it was going to be done, and none of that is going to be helpful to him or Michael Cohen especially as it relates to campaign finance violations.

STEPHANOPOULOS: Does it change your stance towards Michael Cohen?

AVENATTI: Well, this particular disclosure does not change our stance towards Michael Cohen but there’s been an evolution of our position towards Michael Cohen recently, I think that’s fair to say.

ABRAMS: And let’s be clear. It wasn’t illegal for Michael Cohen to make --

(CROSSTALK)

STEPHANOPOULOS: -- consent.

ABRAMS: Right. But it may have been unethical. I mean, that’s a separate question. People have to separate out a question of what is your legal obligation, meaning can you be charged with a crime for it. The answer to that is no. The separate question is could he get in trouble with the Bar Association for what he did. Absolutely. I think the only way he could possibly defend having made this recording is either to say that Donald Trump knew, which it doesn’t seem was the case, or somehow he was protecting himself.

Right? If he’s going to say, I thought Donald Trump was potentially committing a crime here and so I had to protect myself. If neither of those are the case, then there really isn’t any defense for him in making the recording.

STEPHANOPOULOS: I want to bring that to Alan Dershowitz --

(CROSSTALK)

STEPHANOPOULOS: -- those are the vulnerabilities for Michael Cohen. The other possibility, though, is that this could end up helping him if he chooses to try to cooperate with prosecutors either in the Southern District or with Robert Mueller.

DERSHOWITZ: Well, there is no question that he is holding out the possibility of cooperating. He is holding it out so that both the president can hear it and possibly take some actions, namely, a pardon, and he is holding it out for the prosecutors as well.

But I have a question for Michael Avenatti. How do you know that there are other tapes? You're not in a position where you could possibly know that properly. How do you know there are other tapes involving the president of the United States?

Are you privy to what was seized from the office? That's a very important question. I wish you would answer it.

AVENATTI: Well, Alan, I'm not going to answer your question because I don't have to answer your question.

DERSHOWITZ: I didn't think so.

AVENATTI: Well, suffice it to say, Alan, that my accuracy rate over the last six months has been a heck of a lot better than yours as it relates to this matter and a whole host of...

(CROSSTALK)

DERSHOWITZ: I'm not getting into anything personal, I just want to know...

AVENATTI: Please don't interrupt me.

DERSHOWITZ: … how you know it? Because it's very important.

AVENATTI: Alan, Alan, Alan, please don't interrupt me, OK? My accuracy rate over the last six months has been spot on in this case. And let me tell you this, if I'm wrong, then why don't we have Mr. Trump or his attorneys come forward today, right now and claim there are no other tapes?

You're not going to hear that because...

DERSHOWITZ: No, my point is...

AVENATTI: You're not going to hear that because there are other tapes, period.

DERSHOWITZ: You miss my point. My point is you're probably -- if you're right, if you are right, we have a real problem, not if you are wrong. If we're right, then you have access to information that's supposed to be sealed and supposed to be secret. How do you have that information? How are you right? How did you get that information that nobody else knows?

You're not in a position where you have been given that information properly. So I think you do have an obligation to answer that question.

ABRAMS: Well, I would think that he could have had access to the information before even this investigation into Cohen began. I don't know the answer to that, that's just my guess is that it hasn't always been a criminal investigation, and apparently this has been happening, according to Michael Avenatti, for years.

STEPHANOPOULOS: That's one possibility.

ABRAMS: I'm just playing out all of this here.

(CROSSTALK)

DERSHOWITZ: Let me answer it. You don't have to guess, he knows the answer.

AVENATTI: Alan, let me say this. All of the information that the FBI seized, that's not under lock and key. The only way that it would be improper for me to have it is if I got it from the FBI or somebody in law enforcement. There's a host of other ways I could have obtained that information.

But look, if I'm wrong...

DERSHOWITZ: How? How?

AVENATTI: Well, I could have received it from Michael Cohen. I could have received it from one of Michael Cohen's counsel. I could have received it from others. There's a host of ways I could have obtained it.

But look, Alan, here's the bottom line. If I'm wrong about it, then why doesn't somebody come forward...

(CROSSTALK)

AVENATTI: Please don't interrupt me. If I'm right about it -- If I'm wrong about it, let somebody come forward and state that I'm wrong.

STEPHANOPOULOS: Have you heard the tape?

DERSHOWITZ: You're missing my point. You're right about it and you shouldn't have the information. And it raises deep questions about how you have access to information that Judge Kimba Wood gave to a judge -- a former judge to investigate in secret because it's potentially lawyer-client privilege.

(CROSSTALK)

DERSHOWITZ: You shouldn't have lawyer-client information...

AVENATTI: Alan, Alan, Alan, do you know what Michael Cohen -- Alan, do you know what Michael Cohen has shared with me?

DERSHOWITZ: I don't, but I think...

AVENATTI: Thank you.

DERSHOWITZ: … we should know that.

(CROSSTALK)

STEPHANOPOULOS: I want to follow up on this just a little bit, you know there are tapes, do you know what's on the tapes?

AVENATTI: I know the substance of some of the tapes, yes.

STEPHANOPOULOS: And what you have also mentioned, saying that your relationship with Michael Cohen is evolving, what did you mean by that?

AVENATTI: Well, exactly what I said. I mean, I think that I ran into Michael Cohen at a restaurant in New York City on Monday. We had a conversation, I thought it was very fruitful. And we've continued to have a dialogue. And I think that ultimately, George, Michael Cohen is going to assist us in our search for the truth and disclosure of what happened here.

I think you have seen an evolution by Michael Cohen over the last month or so with the retention of Lanny Davis and others, I think he is ready to tell the truth. And ultimately I think he is going to cooperate with us as it relates for our search for the truth.

DERSHOWITZ: But remember that he is not allowed to cooperate with anybody if there's lawyer-client privileged material. He's not permitted to give you that information even if he would like to if it's lawyer-client. He doesn't own it. It's owned by the client.

(CROSSTALK)

STEPHANOPOULOS: As you know, Alan, in terms of this tape, though, the privilege was actually waived by the president's...

DERSHOWITZ: Only as to that one tape, not as to other tapes. They were very careful about that. And that's important. Look, I taught legal ethics for 30 years. These are very, very important and difficult ethical issues. And I think we're entitled to get to the bottom of whether or not Cohen is revealing lawyer-client material information, what the nature of the cooperation is.

These are all issues that transcend this particular case and go to the legitimacy of the legal profession.

STEPHANOPOULOS: I want to ask a final question to Dan Abrams. Is AMI facing any legal vulnerability here?

ABRAMS: Yes, I would be very concerned if I were AMI. I mean, we've already seen that the Department of Justice is not treating them the way that they typically would a news organization. And you really have to wonder what's going to be next.

I think the people at AMI are concerned legally about what...

(CROSSTALK)

DERSHOWITZ: This raises very serious First Amendment questions. When you start questioning legitimacy, and here's the quote, whether it's legitimate press function, you're really beginning to step on First Amendment rights.

ABRAMS: Well, no, but...

DERSHOWITZ: We know that newspapers buy stories all the time. Once government officials start raising questions about whether a press function is legitimate, that really begins to raise –

(CROSS TALK)

ABRAMS: -- the question would be – the question would be was AMI making a deal with the president such that it had nothing to do with actually publishing stories, but instead making a deal to kill stories.

That is not a first amendment press function, and it is a question we have to ask.

(CROSS TALK)

It’s not – it’s not just a question we shouldn’t ask, it’s a question we have to ask.

DERSHOWITZ: Deciding what not to publish is as important a press function –

(CROSS TALK)

ABRAMS: -- not paying not to publish, that’s different.

(CROSS TALK)

Paying not to publish is not a choice not to publish, that’s paying money to make sure something doesn’t get out there.

DERSHOWTIZ: That’s right, ethically there’s a big difference, but under the first amendment, remember in British newspapers, other newspapers do pay, and once you start tinkering with the first amendment borders like this, we really have a serious question.

ABRAMS: Question is one thing. We should be asking the questions. But to somehow suggest that it’s wrong to be asking questions of AMI I think is a – a vast overstatement.

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