In this thread, BobLibDem asked about the practicality of putting a wire on an informant within the White House. I am more interested in the legal aspects.
Suppose Mueller had a mole in the White House, and wanted said mole to record conversations with Trump. So they gimmick up a cell phone to record everything, and sent him off to collect information on Trump.
[ul][li]I assume Mueller would need a warrant, and the warrant would need to specify what exactly the information was he was looking for. [/li][li]Would the recordings be legally admissible? [/li][li]Could Trump claim executive privilege? [/li][li]I thought Linda Mueller got into some trouble when she recorded conversations with Monica Lewinsky without her permission (about Clinton and the affair). That wasn’t in the White House - does state law trump (sorry) federal law? Does it matter if the matter under investigation is a violation of state law, or federal law?[/ul][/li]IANAL. Void where taxed or prohibited. Kids, get your parents’ permission. Contents may settle during shipping.
Both D.C. and the federal wiretap law only require one party’s consent. So a federal agent or someone acting for a federal agent can record their conversations with anyone in any place in the District.
Maryland, by contrast, is an all-parties consent state, which is where the Lewinsky convo was recorded.
IANAL but Federal law appears to be one-party law; that is a conversation can be recorded if one party consents. (See 18 U.S.C. 2511(2)(d).) So unless the President has special protection, it would seem the recording would be legal.
Whether it would be admissible in a impeachment hearing is not clear. I don’t know what rules of evidence they operate under. I’d guess they operate under whatever the Senate or presiding Chief Justice says. I don’t know of a precedent.
Presidents discuss sensitive military matters quite often. Any recording would have to go through the ‘black box’ of a security review, and military and intelligence agencies have previously misused those powers to protect connected individuals. You’d end up with useless snippets by the time they finished.
No, I don’t think so. Those cases are about recording in public. I’m not aware of any case holding that there is a First Amendment right to recording in places with a reasonable expectation of privacy.
No, it would not. The First Amendment prohibits prior restraint in this context.
And you say that with a straight face too - that the constitution trumps (again) National Security. I find that hard to believe in the real world, as opposed to the theoretical world.
If the recording were set up by the special prosecutor, I would imagine it would come down to a fight between the judicial branch (is that who the special prosecutor would run to?) and the executive branch over who has direct access before censorship; and that decision would have to be made by the judicial branch, ultimately…
Technically, I assume the SP works for the department of Justice and hence the executive, but interfering with his actions would I assume drag in the Judiciary…?
More specifically, would a recording device make it past basic security screening or is the White House moderately lax about that stuff for trusted people?
Yes. But that just means surveillance laws apply and there is not a First Amendment right of access. It doesn’t mean you cannot secretly record the President. You certainly can.
I’m pretty sure a reasonable expectation of privacy does not apply when the recording is done by the person being spoken to. Then the person can testify (assuming some privilege like spousal doesn’t apply). And the recording is only confirming evidence.
As a practical matter, I’m assuming it would be extremely difficult to bug the President without his knowledge. I’m going to assume the American intelligence community is aware that foreign powers would seek to get recording devices into the White House and takes active measures to prevent any unauthorized recordings from occurring.
Yes, I did mean that, even if I didn’t type it. Thanks.
I assume the person recording stuff in the White House has to be present during the recording for it to be legal. I couldn’t set a bug in the Oval Office and record everything, could I?
By all accounts, some officials continue to use private phones in the White House. I’m assuming they have to leave them outside of SCIFs, but otherwise I don’t think the intelligence community has been successful at getting these people to obey simple security precautions yet.
I went to the WH once as part of a documentary crew. We had to have all our gear go through an X-ray machine and walk through a metal detector, but we were allowed to keep our phones. This was in the smartphone era, and all smartphones include a record function. So it’s pretty easy to imagine anyone who could get access to the president leaving their phone on record in a shirtfront pocket.
As an aside, the WH press briefing room is incredibly small. Maybe 30x60? And the seats are (or were) ancient and uncomfortable. Also, mostly it’s not in use, so it’s full of incredibly bored, on-the-clock-just-in-case camera ops, photographers, and reporters. It was a cold rainy day so the room was warm, clammy, and smelled like sweat that had been there since James Madison.