Trump Taping Comey Would Be Creepy – But Would It Be Criminal?

Trump’s tweet creates mystery — but the legal issues seem clear

It would have been creepy for Donald Trump to secretly record his conversations with FBI Director James Comey. Creepy, but probably legal.

Trump’s tweet Friday referencing possible tapes of his conversations with Comey raised questions about who would have taped whom: Was Trump implying that he had taped Comey, or that he suspected Comey of taping him? His team refused to offer any clarity on the matter.

But if Trump did secretly tape his conversations or phone calls with Comey, it does not appear that the president broke any local or federal wiretapping laws.

The now-infamous dinner where Trump reportedly asked Comey for his loyalty took place in the White House. The District of Columbia allows people to secretly tape their phone conversations and in-person conversations so long as the person doing the secret taping is in the conversation.

Federal wiretapping law also allows Trump to secretly tape his own calls with other people without their consent.

States like California require everyone on the call to consent to taping, so no secret taping is allowed. This means that if Trump tapes his phone calls with people who are in California at the time of the call, Trump would be violating California’s wiretapping law.

Laws vary from state to state.

“I think it would be legal if they were in D.C. or Virginia,” said University of Maryland journalism school dean Lucy Dalglish. “But Maryland is a two-party state.”

Then again, presidents have immunity from civil lawsuits for their official acts, so assuming a court would find Trump’s taping to be an official act, the hypothetical caller in California would find their invasion of privacy lawsuit against Trump quickly tossed out of court.

But tapes can have unexpected consequences, as California’s Richard Nixon can attest.

President Nixon’s White House tapes were subpoenaed by a special prosecutor, and the tapes showed that Nixon had obstructed the federal investigation of the burglary of Democrat Party offices at the Watergate office complex in 1972. Nixon resigned soon after.

If Trump has tapes, they could be subpoenaed by Congress, a regular federal prosecutor or a special prosecutor if one is appointed — and Trump would legally have to turn them over, as the Supreme Court ruled in the Nixon tapes case in United States v. Nixon in 1974.

Trump tweeted to Comey that he “better hope that there are no ‘tapes’ of our conversations. Democrats Rep. John Conyers of Michigan and Maryland Rep. Elijah E. Cummings of Maryland immediately demanded copies of any tapes Trump made.

“Because of the many false statements made by White House officials this week, we are compelled to ask whether any such recordings do in fact exist. If so, we request copies of all recordings in possession of the White House regarding this matter,” the lawmakers wrote Friday.

Trump’s tweet about tapes came a day after his Thursday interview with NBC News’ Lester Holt in which Trump suggested that he fired Comey to stop the FBI investigation of Trump campaign officials and their possible connection to the Russian government’s interference with the 2016 election.