Omarosa is case of false friend dilemma with few legal options

/the hill.

The disclosure that former White House aide Omarosa Manigault Newmansecretly taped President Trump and others has produced legitimate outrage. These tapes include at least one conversation with chief of staff John Kelly in the Situation Room, the White House inner sanctum where the most classified matters are discussed. Various people have called for criminal prosecution or other measures against Manigault Newman. The dilemma of the “false friends” is not new, however, and the legal options for the White House are more limited than one might think.

The problem of false friends and secret recordings have been a longstanding element of our criminal jurisprudence. The idea that nothing protects us from false friends goes back to early English law and “eavesdropping” cases. In 1952, in a case called On Lee v. United States, the Supreme Court noted that the use of “false friends, or any of the other betrayals, which are ‘dirty business’ may raise serious questions of credibility” but do not raise serious problems under the Constitution.

Thus, a secret taping of a conversation is not itself illegal, absent other elements. One element would be if any of the conversations are deemed classified. Much of what a president discusses, particularly in places like the Situation Room, are considered classified. The secret recording or removal of classified information can be a crime.

The legal exposure of Manigault Newman follows the old real estate rule of location, location, location. It depends greatly on where she made her secret tapings. The District of Columbia is a “one party” consent jurisdiction, so it is not illegal as long as one party, in this case Manigault Newman, was a party to the conversation. It is the same law protecting former Trump counsel, Michael Cohen, who taped his own client secretly in New York, another “one party” state, and released one of those tapes in an apparent bid to attract Robert Mueller with a possible plea bargain.

Ironically, it also is the law that protected Trump after he reportedly told people he may have taped their conversations in New York. The situation becomes more dicey for Manigault Newman if she taped conversations at Mar-a-Lago, since Florida is a “two party” consent state. Absent the crossing of state lines into a two party consent jurisdiction, her actions were certainly reckless and reprehensible but probably legal.