Judge Andrew Napolitano said Wednesday the leaked tape of President Trump and his former attorney shows fraudulent - but not criminal - activity. 

In the secretly recorded audiotape from two months before the 2016 election, Michael Cohen and Trump apparently discussed buying the rights to a Playboy model’s story claiming an affair with Trump.

Napolitano agreed with Trump’s personal attorney Rudy Giuliani's assessment that there is no indication of any crime being committed on the tape, but he said there is an indication of an "obvious fraud."

He explained that on the recording, Trump and Michael Cohen appear to discuss a $150,000 payment to the National Enquirer so that the publication could buy the rights to Karen McDougal's story, but never actually publish it.

"But the real aim here is to bury the story by duping her into selling it to them and then not publishing," Napolitano said. "That failure to be truthful to her and the involvement of Donald Trump and Michael Cohen in that decision is the fraud."


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The tactic, known as "catch and kill," was also allegedly used for years by former Hollywood mogul Harvey Weinstein to bury claims of sexual misconduct.

Napolitano said that would be a civil fraud, as opposed to a criminal fraud, but it's still significant because if an attorney and client discuss the commission of a fraud, there is no attorney-client privilege in that conversation.

"Meaning the tape can be used by anybody who can get their hands on it for any purposes," Napolitano said, noting that would include Special Counsel Robert Mueller.

Bill Hemmer noted that this is one of 12 recordings seized from Cohen's apartment, office and hotel room by federal investigators in April.

"God only knows what else is in there," Napolitano said.

Trump has denied the affair with McDougal and his legal team says the transaction never occurred. Trump lashed out Wednesday morning over the release of the tape. 

Speaking to Laura Ingraham after the release of the tape to CNN, Giuliani, said it's "outrageous" that the tape was leaked to the media. 

The tape was provided to CNN by Cohen's attorney, Lanny Davis.

See more from the judge above.


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