Did the Person Who Recorded Trump in 2005 Break the Law?

WAS THERE A PRESUMPTION OF PRIVACY ON BOARD THE BUS?

by Sharon Rondeau

(Oct. 9, 2016) — On Friday, an audio-recording was released by The Washington Post from a 2005 bus ride en route to the filming of a soap opera episode to include then-TV reality show star and businessman Donald Trump and actress Arianne Zucker.

Trump’s visit to Los Angeles included having joined then-host of “Access Hollywood” Billy Bush for recognition of his popular television series, “The Apprentice,” which continues to air on NBC.

While video of the bus traveling to and stopping at its destination to meet Zucker has also been broadcast, the audio of the conversation between Trump and Billy Bush, said to have been captured by a “hot mic” and widely condemned as “offensive,” is the subject of what The Post now calls a “crisis” within the Republican Party.

Other media seized upon the chaos which ensued after The Post released the audio which caused more than 100 Republicans, many already half-hearted Trump “supporters,” to renounce their endorsements or vote on Election Day.  Some called for the Republican Party to find another nominee, although whether or not that could be accomplished with less than five weeks until the election is dubious.

“Replacing Trump” has been suggested both before and after the Republican National Convention held the third week of July.

The Post is a markedly left-leaning publication. On Sunday, its front page further declared, “The fallout from the 2005 video of Donald Trump bragging in vulgar terms about groping women now threatens to endanger the GOP’s hold on both chambers of Congress.”

On Saturday evening, interviews over at least 16 years between Trump and satellite radio show host Howard Stern, known for his discussion of adult content, were highlighted by CNN and The Post.

Fox News’s “The Kelly File” host Megyn Kelly has been a guest on Stern’s show.

Billy Bush is a cousin to Jeb and George W. Bush and is now co-host of the NBC “Today” Show with Savannah Guthrie and Matt Lauer.  At the time of the 2005 audio-recording, Bush would have been 33 and Trump 59 years of age.

On Saturday, The Washington Post criticized Billy Bush for failing to divulge publicly Trump’s attitude toward women as articulated in the recording and speculated that others in the media and public life have knowledge of the same pattern in Trump’s behavior but have not come forward.

Whether or not Bush recalled the conversation from 11 years ago as Trump sought the nomination is unclear.

In its reportage, The Post claimed that Trump knew his comments made on the “Access Hollywood” bus were being recorded and, unsurprisingly, does not divulge the source of the recording.  “Listening to the Trump-Bush tape, you can’t help but notice how at ease Trump is. Although he is mic’d up and talking to a TV host, he seems wholly unconcerned that his remarks will be made public — almost as if he has done the same locker-room routine with other interviewers before,” author Callum Borchers wrote.

The Post, however, acknowledges that the exchange between Trump and Bush was “off-camera.”

Whether or not any conversation which took place on the bus among Bush, Trump, the camera crew and security personnel between one Hollywood television set and another was assumed to have been recorded is also unclear.

Borchers did not note that in 1995, Barack Hussein Obama, while reading passages from his newly-released book, “Dreams From My Father,” unabashedly uttered one of the same “offensive” words used by Trump to an audience at an educational forum at the Cambridge Public Library.

The Post’s reportage of Democrat presidential nominee Hillary Clinton does not appear to be nearly as aggressive as that of Trump.  Clinton has, according to eyewitness former Secret Service agent Gary Byrne, told a young agent to “Go to h—” and another who greeted her with, “Good morning, First Lady,” with a shocking, undeserved obscenity.

Clinton has been said to have hurled obscenities at Obama when an FBI probe was first launched into her use of a private email server, of which Obama falsely claimed he had no knowledge prior to The New York Times’s having broken the story in March 2015.

According to Byrne, Clinton referred to Secret Service agents in derogatory terms during “a screaming, obscenity-laced tantrum” as detailed in his book, “Crisis of Character:  A White House Secret Service Officer Discloses His Firsthand Experience with Hillary, Bill, and How They Operate” released in late June.

A second article published by Borchers on Saturday contains the headline, “CNN’s newest hire is already making life harder for Donald Trump,” referring to former Buzzfeed News researcher/writer Andrew Kaczynski.  The last paragraph of the column reads, “Trump already derides CNN as the ‘Clinton News Network,’ accusing the cable channel of bias — even though the channel also employs his former campaign manager. But whatever. Trump loves to promote the idea that CNN — along with the rest of the mainstream media — is out to get him. If he goes on a new Twitter tirade against CNN in the near future, you’ll know at least one of the latest reasons.”

Following the taping of the 2005 “Days of Our Lives” episode featuring Trump, Zucker reportedly “had nothing but good things to say about working with Trump.”

The publication Variety has provided what this writer sees as balanced and unemotional reportage of the controversy arising from the released Trump-Bush recording.

Early in the audio, a woman whose first name is “Nancy” is mentioned as an object of Trump’s attraction.  Trump told Bush that he “took her furniture shopping” and attempted to initiate a physical relationship but “failed.”

The woman, Nancy O’Dell, was then co-host of “Access Hollywood” and is now the host of “Entertainment Tonight.”  When reached for comment about the recording, O’Dell released a statement which said:

Politics aside, I’m saddened that these comments still exist in our society at all. When I heard the comments yesterday, it was disappointing to hear such objectification of women. The conversation needs to change because no female, no person, should be the subject of such crass comments, whether or not cameras are rolling. Everyone deserves respect no matter the setting or gender. As a woman who has worked very hard to establish her career, and as a mom, I feel I must speak out with the hope that as a society we will always strive to be better.

Former presidential candidate Mitt Romney characterized Trump’s comments as “hitting on married women,” which is accurate, and “condoning assault,” which may or may not be accurate.

Regarding elected public servants, members of Congress have been accused and, in some cases, found guilty of inappropriate relationships, including with teenagers.  In April, former Speaker of the House Dennis Hastert was sentenced to 15 months in prison for abusing boys during his time as a high school wrestling coach.

Hastert had the longest term as Speaker, serving from 1999 to 2007 and from 1987 to 2007 as U.S. Representative from the 14th district of Illinois.  His crime was exposed after he was accused of violation federal banking law to pay “hush money” to silence one of his victims.

One of Hastert’s victims died from AIDS in 1995; another has reportedly “suffered for years of severe panic attacks, bouts of depression, unemployment, careers changes, hospitalization and long-term psychiatric treatment.”

On June 5, 2015, NBC News reported that Rep. Mark Foley admitted to “inappropriate communications with pages, or interns, many of whom are of high school age, who work on the House floor” and subsequently resigned while Hastert was Speaker. “A resulting ethics investigation by the House of Representatives concluded that the Speaker was told about the emails but that there was ‘no evidence that the Speaker took any action’ to address the concerns being raised,” NBC wrote.

In a column published on Sunday, Sher Zieve detailed what could be construed as “offensive” statements and actions made by sitting presidents, both Democrat and Republican.

Former bodybuilder and Governor of California Arnold Schwarzenegger, who was unfaithful to his wife and had a child out of wedlock with a domestic employee, now hosts “The New Celebrity Apprentice” launched by Trump.  After the audio was published, Schwarzenegger said that he will not vote for Trump next month.

On October 6, 2003, CBS News reported on a growing scandal involving the former actor and then-gubernatorial candidate involving alleged inappropriate physical contact with at least 15 women.  According to The Los Angeles Times, the accusations spanned three decades.  At the time, Schwarzenegger’s campaign denied the accusations and characterized them as “an escalating political attack.”

Schwarzenegger went on to win the special election spurred by the recall of then-Gov. Gray Davis.

In 2011, Tracy Weber, claiming to be “The Reporter Who Busted Schwarzenegger For Groping Women,” wrote of her role as an investigative reporter:

…I went crisscrossing Southern California in search of women groped by the Republican candidate for governor. Some declined to speak. Others brusquely said nothing had ever happened.

But several reluctantly began to describe behavior that appeared to cross every imaginable line. As I interviewed these women, I came to believe in the importance of the story. They were strong, professional, independent people, women like me: competent and assertive.

Their experiences with Schwarzenegger were double humiliations. First they suffered through the acts themselves: demeaning–often public–groping, unwanted, invasive kisses, crude, belittling comments.

Whether or not Trump was aware his conversation with Bush was being recorded is unclear.  The Post & Email takes no position on political candidates but questions whether or not the person who recorded what could have been considered a private conversation between Trump and Bush and subsequently made it available to the media has violated California state law.

According to the law office of Stimmel, Stimmel & Smith, “secret recordings of conversations in California” is “a crime.”  The law firm writes, in part:

California has some of the strongest laws in the country on wiretapping. Put simply, absent consent of all parties, they are not only not admissible into evidence, but a crime to obtain and allow the “injured party” to sue. Admittedly, damages are hard to prove in these cases. Recognizing this, the statutes provide for a multiplier of damages should the civil case be proven. Further, given the cost of litigation and the fact that the act is a crime, the exposure can be significant.

While obviously enacted to protect privacy rights, the statutes were also enacted to protect consumers in a world of mass telemarketing. Contracts were often claimed to have been made by customers in telephone calls and “proven” by secret recordings. That type of practice was eliminated but the law went much further in its effects.

Article I of the California Constitution states:

SECTION 1.  

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

(Sec. 1 added Nov. 5, 1974, by Proposition 7. Resolution Chapter 90, 1974.)

California Penal Code, Section 632, states:

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(b) The term “person” includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

(c) The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

(e) This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

(Amended by Stats. 1994, Ch. 1010, Sec. 194. Effective January 1, 1995.)

The California law firm of Brown & Charbonneau, LLP, states of the code:

Penal Code § 632, enacted under the California Invasion of Privacy Act, makes it illegal for an individual to monitor or record a “confidential communication” whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device. California is known as a “two-party” state, which means that recordings are not allowed unless all parties to the conversation consent to the recording.

Under Penal Code § 632(c), “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

A violation of Penal Code § 632 can lead to a fine of up to $2,500 and/or imprisonment for up to a year. In addition, the violator may be subject to civil liability in the amount of $3,000 or three times the amount of any actual damages sustained as a result…

On October 3, former Judge and Fox News Legal Analyst Andrew Napolitano stated that the source of Trump’s 1995 tax return reportedly mailed to The New York Times was acquired and sent to the media outlet illegally. At the same time, Napolitano stated that The Times did not break the law by publishing them.

In September, Breitbart reported that New York Times executive editor Dean Baquet said “he would publish the tax documents even if he illegally obtained them” and had to spend time in jail.

The recording released on Friday is not the first released by The Washington Post involving Trump’s past.

On Friday night, The Washington Post wrote in its “Arts and Entertainment” section, “Billy Bush was already a polarizing figure for NBC.”