Before outlining Avenatti’s allegations, some context is in order. The hearing before Judge Kimba Wood of the Southern District of New York was the continuation of a fight over material seized from President Trump’s personal attorney, Michael Cohen. After federal investigators searched Cohen’s homes and office in April, the potential evidence was held for review to ensure attorney-client privilege was maintained, given Cohen’s occupation. More than 3.7 million individual seized items (documents, files, emails, etc.) exist in varying states of limbo: Some have been cleared to be turned over to the team looking to build a case against Cohen, some have been identified as privileged by Cohen’s team awaiting verification from a third party and some still need to be catalogued.
Avenatti, as you probably know, is not naturally a part of this process. His beef with Cohen is ancillary, stemming from Cohen’s role in negotiating the pre-election hush agreement that silenced Daniels in exchange for $130,000 in cash. Avenatti wasn’t Daniels’s attorney at the time; she was represented by a lawyer named Keith Davidson.
On Wednesday, Avenatti explained why he thought he had cause to participate in the discussion of what happened to the material seized from Cohen. He explained that last week, he received a call from a reporter who asked for comment on an audio recording between Cohen and Davidson in which Davidson both discussed Daniels and, allegedly, revealed information that should have been considered privileged between him and his then-client. Avenatti speculated that information about such a recording could have come only from Cohen’s team.
In response, Cohen’s lead attorney, Stephen Ryan, said he was “unaware of any release of an audio file at this time.” He assured the court that audio files collected in the raid were, like the rest of the evidence under his firm’s control, “under lock and key” in his office — implying that no one else could have released such a file, either. Among those files would be ones involving Keith Davidson or Daniels, “if any” existed.
We go back to Avenatti, outside the courtroom after the hearing.
“Mr. Ryan admitted that there are audio recordings that Michael Cohen was taking for years and that those recordings are, to quote him, not only do they exist but they are under lock and key — and some of them relate to my client and her attorney-client privileged communications.”“Mr. Cohen and his attorney Mr. Ryan should release all of those audio recordings to the American people and the Congress so that they can be heard by all, and people can make their own determinations as to their importance relating to the president, and what he knew and when he knew it.”
There are a few rhetorical tricks here worth noting. The first is that Avenatti turns Ryan’s assertion of recordings being under lock and key into something that sounds much more nefarious than was intended. Avenatti also claims that Ryan admitted recordings related to Daniels exist — but that isn’t the case. (In the courtroom, Avenatti made a similar claim, which Ryan left unchallenged.)
The most obvious trick, of course, is comparing these recordings to those recorded in the Oval Office during the administration of Richard Nixon. Those recordings involved Nixon himself discussing a wide range of subjects including, most famously, efforts to cover up the break-in at the Watergate Hotel. It was the ultimate release of one of those recordings, the “smoking gun” tape, that immediately preceded Nixon’s resignation from office.
These recordings, on the other hand, are apparently focused on conversations that Cohen had, not Trump. When news reports about the possible existence of such recordings were first published, it was speculated that recordings of Cohen speaking to Trump might exist, but it’s not clear that’s the case. These recordings (which, if we’re nitpicking, are certainly not actual tapes) may not include Trump at all. “Trump tapes” is catchy, but based on what has been reported and what Ryan described in court, it’s quite possibly a misnomer.
Bear in mind, it’s possible that recordings of Trump do exist, just as it’s possible that recordings involving Daniels’s then-attorney or case might exist. (On MSNBC on Wednesday afternoon, Avenatti said it was his “understanding” that recordings of Trump existed.) Ryan’s vague answers in court certainly leave open those possibilities. It’s not the case, though, that Ryan copped to that being the case Wednesday.
Avenatti does have a track record of breaking news, of course. Earlier this month, Avenatti released a document that revealed large payments that Cohen had received from various businesses during the presidential transition. But Avenatti’s track record isn’t flawless. That document also reportedly included transactions involving other people sharing Cohen’s name. Its release, Ryan said in court, amounted to “a drive-by shooting of anyone named Michael Cohen.”
That tendency toward grabbing headlines was not well-received by Judge Wood during Wednesday’s hearing. Were he granted the right to participate in the process, she said, Avenatti would “have to stop doing some of the things that you’ve been doing.”
Avenatti’s sweeping and unproved allegations about “Trump tapes” seem like a good example of those things.