Toward the end of the last presidential election and into President Donald Trump’s term in the Oval Office, conspiracy theories involving Russian involvement in the election began swirling. On May 9, 2017, Trump fired FBI Director James Comey, who then gave a friend notes he had taken during conversations with Trump regarding the issue of Russian involvement in the 2016 election. Trump responded in a tweet three days later: “James Comey better hope that there are no 'tapes' of our conversations before he starts leaking to the press!"
Which begs the question: Would Trump be within his legal rights if he were to record conversations with Comey? In all likelihood, yes.
Both the District of Columbia and the federal government adhere to the “one-party consent” rule when it comes to recordings. According to this rule, it’s perfectly legal to record a conversation as long as one party to that conversation is aware that it’s happening. In this scenario, Trump was presumably doing the recording, so he knew and that’s that. There’s no provision that says that the individual doing the recording can’t be the same someone who knows it’s going on, so Comey’s knowledge is not required.
It can get more complicated from there, of course. If Trump and Comey were speaking on the telephone and one was in Washington while the other was in a two-party consent state, there’d be some debate about which state’s law applied. But that allegedly is not the case here – Comey and Trump were together and in Washington, D.C. at the time these conversations were to have taken place.
Then there’s the matter of the “informant doctrine.” Georgetown Law Professor Laura Donohue said in a Fox News report that whenever you divulge information to someone else, you lose the right to privacy – even if you’re in your own home at the time. So overall, if Trump did indeed tape James Comey who voluntarily divulged information, nothing illegal occurred.
Can Congress Subpoena the Tapes?
Senator Mike Lee, R-Utah, says that Trump might indeed be compelled to turn the tapes over to an investigative committee, whether pursuant to a subpoena or other means. It appears that Congress has a right to demand the recordings. Although sharing the contents of an illegally obtained recording is against the law, the alleged tapes in question were not illegally obtained. And as Donohue said, the moment Comey divulged information to Trump, that information became admissible in court because he had no legal expectation of privacy.
Additionally, a loophole exists in the law that it’s not against illegal to disclose an illegally-obtained recording if the contents are “common knowledge.” That seems unlikely, however, unless Trump and Comey were discussing something like the national deficit or World War II.
This story is still unfolding, but the takeaway is that it’s perfectly legal in Washington, D.C. and under federal law to record a conversation without the other party’s knowledge as long as you know you’re doing it. And Congress can in all likelihood compel Trump to turn the tapes over if they exist. Remember President Richard Nixon and those Watergate tapes?