Is Access Hollywood’s ‘Trump Tape’ Proof NBC Committed a Crime Against Trump?

TRUMP PEPE thoughtul

Commenter Robert has raised the issue of whether there are legal issues involved in the leak of the Trump “p*ssygate” tape in which he talks manly talk about sex.

In this post only, let’s pass on moral and political judgments and ask about the legal ramifications of the recording.

The entire article penned by an attorney is presented for your consideration.


Did Trump know he was being recorded? If not, a hot mic can be a criminal act in California, and NBC potentially liable. California Penal Code 632 criminalizes any person who “without the consent of all parties” records their conversations. California Penal Code 637.2 specifically authorizes the right of the person whose privacy was invaded to bring a civil suit, with an incredible treble damages provision for RICO-style punishment. That converts, say a $1 Billion claim into $3 Billion of damages. A hot mic can still be an illegal recording if the parties to the conversation thought the mic was not active and not recording.

This corresponds to the “reasonable expectation that the conversation was not being recorded” element of the civil claim. If Trump can prove that aspect — and the very nature of the conversation clearly implies it, from a jury perspective — then NBC would have to prove they did not intentionally record the conversation, subjecting NBC to inquisitive discovery — like does NBC have a habit of “hot mic” recordings? If NBC didn’t record it purposefully, why didn’t they destroy it when they found they had “accidentally” recorded it? Maybe this is why NBC let it leak rather than publish it themselves — to try to distance themselves from their own possibly lawless acts? Worse yet, what might this claim do for other people? How many illegal recordings does NBC have in its vault? Why didn’t they have a custom and practice of deleting anything “accidentally” recorded if it was, in fact, accidental? What other celebrities and citizens might have a claim? Remember the recording itself is illegal and damages are “not a necessary” prerequisite to a claim, with $5,000 damages per incident. That might be some class action.

Does the First Amendment help NBC? The First Amendment protects publishing, not illegal recording. NBC would not even have a sure-fire First Amendment defense for publishing. The First Amendment is not owned by big media; the media cannot easily use it to violate another’s First Amendment rights to unrecorded private speech. As the critical concurrence by Justice Breyer (joined by Justice O’Connor, and essential to any majority outcome in the case), in their decision made clear in Bartnicki (a “narrow holding limited to the special circumstances present,”) that the publisher’s defense depended upon the fact the publisher “neither encouraged nor participated directly or indirectly in the interception” of the conversation. That’s how tough the law treats these kind of these illegal recordings. And there is precedence for such criminal prosecutions as well, even in high profile cases involving sex allegations and the Presidency: ask Linda Tripp, of Lewinsky fame, who was indicted by a Maryland prosecutor for illegally recording Lewinsky’s conversations.

As for NBC, an executive told The Washington Post that NBC attorneys did take several day to vet the tape, which was why The Washington Post scooped them on the story. The executive that talked to The Post said he was unaware of any legal issues and that Trump was “apparently aware at the time that he was being recorded by a TV program.” Maybe aware he would be recorded for the interview, at some point, but was he really aware that the mic was hot when he was having a private conversation with Bully Bush? Based on what was captured, you wouldn’t think so.

The deep juror skepticism of big media will subject NBC to even more scrutiny, and may unleash a range of claims from other people who didn’t know NBC treated their interviewees like a walking open mic to record secretly as they please. That might turn out to be one expensive mic. Trump-Like expensive.

This is an opinion piece. The views expressed in this article are those of just the author.

Robert Barnes is a California -based attorney whose practice focuses on tax defense and First Amendment law,

There are too many things we don’t know to able to say how good a case Trump would have against NBC. What is easy to say is wouldn’t it be nice if Trump ended up owning NBC after the lawsuit was over.

12 thoughts on “Is Access Hollywood’s ‘Trump Tape’ Proof NBC Committed a Crime Against Trump?

  1. I like this advice. The jury will have no synmpathy for a baclackmailing media company. OTOH there would be about 6 HillBilly voters in the jury.
    If Trump loses the election he will win a lot more money. If it is say $3 billion I would not mind Trump slinging me 1% or so for the idea. The lawyer will get up to 30% so I am not asking too much.

    • When the university was investigating me, they put a hidden camera in my faculty office. It’s legal in Texas to record someone without his knowledge or consent or maybe not. I found the camera but they never admitted doing it. It was hidden in an air vent in the ceiling. There are rumored to be recording devices hidden in the meeting rooms too. Incompetent university presidents want to know who’s badmouthing them.

      In my case they implied I was raping and murdering women in my faculty office. They came up with zero. But Mexican assholes always leap from point A to point Z with no evidence other than their own perverted culture to justify that leap. If I were Mexican, it might be justified on the basis of probabilities.

      • The use of security cameras is widespread in corporations and other premises, including private premises. Usually visible, but I do not know is this is compulsory as long as cameras are not in toilets and change rooms, showers for example. Obviously a lot of this is to spy on staff and not just protect them from “terrorists”.
        Bosses can for example see how long smokers take their breaks because they must go outside (no such outdoor breaks for non smokers of course).
        Employers also spy on computer usage such as social media usage etc. though not on private mobile phones – yet.
        The same for Big Brother security cameras in public places. England has a huge number of these. Bad eggs in England love to wear nigger stye hoodies for this reason.

  2. Corporate conversations, and I am not saying the pu$$ygate conversation was one-neither am I saying it wasn’t’, but they are heavily coded because golf courses are a mine field of hidden microphones.
    A conversation by innuendo is fraught with such, An Irish Newspaper reported that G W Bush invaded Afghanistan by these words:
    Colonel Chicken said the operation was a deep penetration …
    These words,Which was decidedly coded, went over the heads of most readers .
    Now if Trump does sue, and cinviinces the jury, not only of Illegal taping, but the revealing of say, a Meow pussy cat commercial… Someone is going to own NBC, and it will not be Comcast.

  3. I have brought up this point before as well. Hulk hogan was also assaulted by the media for complaining that his daughter was dating a nigger in private and he sued the guy who either recorded it or posted it and he won. It’s kinda of similar to Trump’s case and i highly doubt he’d say stuff like that when he knew the microphone was turned on.

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  5. Is there a statute of limitations for this CA law? Unfortunately, most states would not let you bring charges (or a civil lawsuit for money) 11 years after the fact.

      • I agree, though I am only a “bush lawyer” i.e. no qualifications.
        If a blackmailer uses a document he finds which is say 50 years old, it is still blackmail.
        If the document was stolen 50 years before with this motive as criminal intent then I suspect statute of limitations would be waived, as far as the original crime goes.
        It may well be that this 11 year gap is the error NBC made in thinking they could get away with this crime. I hope someone goes to jail, preferably the Chief Executive and similar. Only the very top would have authorized this decision to smear Trump at such a critical time.
        Recording this (maybe accidentally) was a small crime, keeping it was a bigger and intentional crime, releasing it was a huge crime. Whoever kept it should be ailed for at least six months and those who released it should be jailed for one year or more.
        Compo to Trump – all the value of NBC. Give him the network as compo.

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