Judge Andrew Napolitano, Fox News judicial analyst, said a tape of President Donald Trump and his then-attorney Michael Cohen shows fraud, but not criminal acts.
"There doesn't appear to be the indication of any crime, but I think that's the wrong analysis; there is an indication of a fraud . . . If the client and a lawyer discuss the commission of a crime or discuss the commission of a fraud, there is no attorney-client privilege in that conversation," Napolitano said Wednesday on Fox News' "America's Newsroom."
Cohen and Trump on the secretly recorded tape apparently discuss a $150,000 payment to the National Enquirer so it can buy the story of Playboy model Karen MacDougal, who claimed to have an affair with Trump.
"The real aim here is to bury the story by duping her into selling it to them and then not publishing it," Napolitano said in the Fox News interview. "That failure to be truthful to her and the involvement of Donald Trump and Michael Cohen in that decision is fraud."
Napolitano said he agreed with Trump attorney Rudy Giuliani the tape does not indicate a crime has been committed. He noted the difference between civil fraud and criminal fraud.
"Criminal fraud is where you dupe someone out of cash to enrich yourself; civil fraud is when you dupe someone out of cash for some other purpose: The other purpose here was to keep the story from being put in the press," Napolitano said.
Anchor Bill Hemmer noted the recording is one of 12 that federal investigators seized from Cohen's apartment, office, and hotel room in April.
"God only knows what else is in there," Napolitano said.
The analyst said if there is no attorney-client privilege, then "all his communications about these subject matters go right to Bob Mueller," the special counsel in the Russia investigation.
Trump commented on the tape Wednesday. "What kind of lawyer would tape a client? So sad," Trump said in a tweet.
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