The release of a secretly recorded conversation between Michael Cohen and Donald Trump about a proposed secret payment to one of Trump’s supposed mistresses goes a long way towards a potential criminal charge for both men.
The tape captures Cohen and Trump discussing setting up a shell corporation to pay “David” (presumably David Pecker, who owns the National Enquirer’s parent company, AMI) for the rights to Karen McDougal’s story that was acquired by AMI in a “capture and kill” move: AMI purchased exclusive rights to the damaging story of Trump’s affair and didn’t run it.
Lanny Davis, one of Cohen’s lawyers, told CNN that he released the recording to show that Trump lawyer Rudolph Giuliani lied last week when he claimed that Cohen raised the idea of paying cash. Davis claims that the recording clearly shows Trump proposing the idea of paying “cash,” while Giuliani continues to dispute this.
First, in our opinion as prosecutors who have spent hundreds of hours painstakingly scrutinizing similar recordings, it does sound like Trump is the one who proposed paying cash. Beyond that, it is entirely clear that Cohen and Trump agreed on the need to set up a shell company to make the payment, as the Wall Street Journal reported Cohen in fact formed. So, Mr. Giuliani, why set up a shell company to make the payment if there was nothing to hide? Why not just make the payment directly from Donald Trump or the Trump campaign?
Looking at the bigger picture, there is much more here than just a dispute about who says “cash” and who says “check.” From a prosecutor’s perspective, this recording is crucial evidence that could add significantly to the strength of potential felony charges.
While there is some debate about whether Trump could be indicted directly or whether impeachment is the sole consequence for his conduct (an issue that almost certainly would need to be resolved by the Supreme Court), his conduct on the tape could support criminal liability for campaign finance violations, bank fraud, wire or mail fraud, and tax evasion. Even if Trump himself did not commit all of these offenses, or even if the crimes never actually occurred, he could be liable for conspiracy because he agreed with others (including Cohen) to commit these acts. Taken as a whole, the recording shows that Trump—despite his prior statements to the contrary—was part of an ongoing scheme to pay AMI to silence McDougal in the weeks before the election. Trump can’t deny it now: He knew about and endorsed the scheme, according to the tape.
The tape also reveals that the true purpose behind the proposed McDougal payment was to ensure her silence in the weeks leading up to the election. Former Senator John Edwards was charged in a similar scheme but was acquitted because the government could not adequately show that the purpose of payments to his former mistress was to affect the 2008 primary election, as opposed to hiding the affair from his wife. This tape shows that Trump’s purpose unequivocally was to protect himself electorally. On the tape, Trump and Cohen talk about poll numbers, less than two months before the election, and Trump talks about delaying the unsealing of divorce records until, implicitly, after the election.
Keep in mind that prosecutors would never rely on this tape standing alone to prove guilt. It would be one brick in a foundation made up of many different parts. That’s how prosecutors build criminal cases—layer upon layer of overlapping, corroborating evidence. Here, the recording would be used in conjunction with financial records, emails, and witness testimony, including, perhaps, from Cohen himself.
If Cohen cooperates, which he has signaled he wants to do, he can guide the prosecutors though every nuance of this tape and countless other pieces of evidence. After working for Trump for over a decade, Cohen could be the prosecutor’s dream cooperator: one who had special insider access to the leader of a powerful, closed, corrupt organization. We used to prosecute mafia cases. We both know that in the mob—and, perhaps in this White House—the right cooperator can bring down the entire hierarchy. We both have made cases based largely on the testimony of cooperating witnesses with insider access that took down leaders of the Gambino and Genovese crime families in New York.
That scenario is still quite a ways off in this case, but the new tape is one indication that Cohen just might be in position to make it happen.
Miriam Rocah was an Assistant U.S. Attorney in the Southern District of New York from 2001 to 2017 and is a Distinguished Criminal Justice Fellow at the Elisabeth Haub School of Law at Pace University. Elie Honig was an Assistant U.S. Attorney in the Southern District of New York from 2004 to 2012 and is currently a Rutgers University Scholar.