CNN landed a major news coup with the airing of one of the conversations that Michael Cohen secretly taped with President Donald Trump. The tape is not the best in terms of the audio quality but it contains some troubling portions. Notably, this was clearly not a telephone conversation but sounds like an actual meeting where Cohen is sitting and meeting with Trump. I just posted a column on the implications of this secret recording by an attorney. While Rudy Giuliani insists that the tape is clearly exculpatory, the tape could prove more damaging than beneficial to a defense. Clearly, both sides can read negative or positive elements into this tape. While some have insisted that Trump sounds like a mobster, there is not a clear crime being discussed on this tape. There are reportedly more tapes, but this tape has good and bad elements for the Trump team. However, the tape can be used to show that Trump was informed of the deal before the election and participating in the strategy to silence Trump’s alleged former mistress Karen McDougal. However, Trump has not spoken to investigators (as a basis for some false statement prosecution) on this issue.
The most damaging elements include the reference by Cohen to David Pecker, publisher of the National Enquirer, American Media Inc. (AMI), as their “friend” and the plan to buy the rights to McDougal’s story from Pecker. I have previously written that Cohen continues his breathtakingly bad legal advice in suggesting the purchasing of the story. While the plan was never carried out, it would have magnified the mistakes of Cohen exponentially.
You can hear Trump speaking in the office to other individuals about getting something to “go away quickly” and doing “the Charleston thing.” It is not clear what the means but it is not likely the 1920s dance. Certainly people in Charleston are curious and confused:
TRUMP: [In background] Good. Let me know what’s happening, okay? Oh, oh. Maybe because of this it would be better if you didn’t go, you know? Maybe because of this. For that one, you know, I think what you should do is get rid of this. Because it’s so false what they’re saying, it’s such bulls—. Um. [PAUSE] I think, I think this goes away quickly. I think what — I think it’s probably better to do the Charleston thing, just this time. Uh, yeah. In two weeks, it’s fine. I think right now it’s, it’s better. You know? Okay, hun. You take care of yourself. Thanks, babe. Yup, I’m proud of you. So long. Bye.
The most damaging material concerns the planned creation of a corporation to shield the purchase of McDougal’s story from their friend Pecker. Notably, there does not appear to be any question that Pecker would sell the only recently acquired right to McDougal’s story — an exchange that reenforces the view that the contract was a “catch and kill” job by Pecker and AMI:
COHEN: Even after that, it’s not ever going to be opened. There’s no, there’s no purpose for it. Um, told you about Charleston. Um, I need to open up a company for the transfer of all of that info regarding our friend, David, you know, so that — I’m going to do that right away. I’ve actually come up and I’ve spoken —
TRUMP: Give it to me and get me a [UNINTELLIGIBLE].
COHEN: And, I’ve spoken to Allen Weisselberg about how to set the whole thing up with …
TRUMP: So, what do we got to pay for this? One-fifty?
COHEN: … Funding . . . Yes. Um, and it’s all the stuff.
TRUMP: Yeah, I was thinking about that.
COHEN: All the stuff. Because — here, you never know where that company — you never know what he’s —
TRUMP: Maybe he gets hit by a truck.
COHEN: Correct. So, I’m all over that. And, I spoke to Allen about it, when it comes time for the financing, which will be —
TRUMP: Wait a sec, what financing?
COHEN: Well, I’ll have to pay him something.
TRUMP: [UNINTELLIGIBLE] pay with cash.
COHEN: No, no, no, no, no. I got it.
The reference to paying cash will be significant. The only reason to pay cash is generally to avoid a money trail. However, Trump supporters insist that it is Cohen making that statement or that the President is actually saying “do not use cash.” Others have said it is clearly Trump. Audio analysis could well answer that question.
The other negative element is the discussion over delaying the release of divorce papers linked to Ivana Trump for just a short time — the type of strategy that seemed evident in the payments to McDougal and Daniels two months before the election.
COHEN: Um, so, we got served from the New York Times. I told you this — we were …
TRUMP: To what?
COHEN: … To unseal the divorce papers with Ivana. Um, we’re fighting it. Um, [Trump attorney Marc] Kasowitz is going to —
TRUMP: They should never be able to get that.
COHEN: Never. Never. Kasowitz doesn’t think they’ll ever be able to. They don’t have a —
TRUMP: Get me a Coke, please!
COHEN: They don’t have a legitimate purpose, so —
TRUMP: And you have a woman that doesn’t want this.
TRUMP: Who you’ve been handling.
COHEN: Yes. And —
TRUMP: And it’s been going on for a while.
COHEN: About two, three weeks now.
TRUMP: All you’ve got to do is delay for —
That is the bad stuff. However, it is important to note that the worst criminal allegation would likely be a campaign finance violation, which can be hard to prove. This tape is no smoking gun in that sense but it does offer possible tiles for a mosaic of an alleged violation.
The good stuff is that it sounds like Trump is just being informed of some of these efforts by Cohen like having Pecker sell them McDougal’s story. However, Trump clearly refers to the payment in asking “So, what do we got to pay for this? One-fifty?”
While many have criticized the waiver of attorney-client privilege over this tape, there are two reasons for doing so. One is to prevent the tape from being released by the court under the “crime-fraud exception” to attorney-client privilege. Such a ruling would be highly damaging from a political standpoint. Second, timing is key in scandals. Since much of the material in these scandals seem to be leaked over time, it is sometimes better to release the material at a time of your choosing. By releasing the tape, you can immediately offer the early spin like highlighting the exculpatory elements. Finally, there are all those voices in the background. This sounds like a meeting with third parties present or in the room, which could defeat a confidentiality claim.
In the end, Cohen continues to amaze with his consistently bad legal advice and inclinations. One thing however has clearly changed. Cohen is now clearly a foe and not a friend to Trump.