It was probably the last thing on Hillary Clinton’s mind to ask if she was being secretly taped by the Trump campaign when she called to concede the election to president-elect Donald Trump.
But White House Social Media Director Dan Scavino issued a cryptic tweet on Tuesday suggesting that the Trump campaign secretly taped Clinton’s concession call to Trump at 2:30 a.m. on Nov. 9.
Was that legal? Probably — but it’s complicated.
In New York, it’s legal for one person to secretly tape a telephone conversation with another person without the other person’s consent, said Lucy A. Dalglish, dean of the Philip Merrill College of Journalism at the University of Maryland. Both Clinton and Trump were in New York during the call.
But the issue is complicated because it appears from Scavino’s tweet that the Clinton-Trump concession call was made from the cell phone of Clinton aide Huma Abedin to the cell phone of White House Counselor Kellyanne Conway.
“New York is a one-party consent state. So if Kellyanne taped a conversation she was having with Huma, no problem,” Daglish told TheWrap. “But, if Kellyanne arranged for her phone to tape a conversation that Kellyanne did not participate in, then that’s trouble” because Conway was not one of the “parties” to the call.
However, if Trump asked Conway to tape the Clinton-Trump call on his behalf, then Conway’s taping was legal because Trump is a “party” to the call and recorded it via Conway, Daglish said.
It’s also legal in New York to secretly tape a call where the caller knows that the call is overheard by other people. This could have occurred if Trump told Clinton he was putting her on speaker phone during her call.
We don’t know exactly who did the taping — Scavino tweeted that he plans to share “video” from the call at a later date.
Scavino’s tweet says: Screen shot via @KellyannePolls cell phone- of Huma’s call at 2:30amE….6 months ago. I have on video & will share that in the near future.”
Violating the New York wiretapping law is a felony and also can be the basis for a privacy lawsuit against the person who illegally taped a phone call.
Trump and Conway should be glad Clinton was not calling from California. That state requires everyone who is part of a telephone conversation to consent to taping. Violating California’s wiretapping law is a misdemeanor and can be grounds for an invasion of privacy lawsuit.