What We Know About Michael Cohen’s Tape

By John Cassidy

What sort of lawyer surreptitiously tapes his conversations with his client? Donald Trump’s lawyer. On Friday, the Times reported that Michael Cohen, who at times has been Trump’s attorney and fixer, “secretly recorded a conversation with Mr. Trump two months before the presidential election in which they discussed payments to a former Playboy model who said she had an affair with Mr. Trump.” Other media outlets quickly confirmed the scoop, which, for a few hours anyway, overshadowed the continuing controversy about the President’s abject performance alongside Vladimir Putin at the Helsinki summit.

With accusations of treason flying around, some people dismissed the Cohen story as a distraction. Perhaps it is. But it’s also a reminder that Cohen’s legal troubles are ongoing, and that their potential ramifications for Trump are far from clear. As Paul Waldman pointed out in the Washington Post on Friday, “you never know when something that looks trivial today could turn out tomorrow to be anything but.”

Cohen made the recording in September, 2016, and F.B.I. agents seized it this April, when they raided his office, home, and hotel room in New York. Rudy Giuliani, Trump’s lawyer, told the Times the recording is less than two minutes long. At the time it was made, A.M.I., the parent company of the National Enquirer, was negotiating with representatives of the former Playboy centerfold Karen McDougal, who claimed she had an affair with Trump in 2006 and 2007. A.M.I.’s chairman, David Pecker, is a longtime friend of Trump. In a practice known in the tabloid world as “catch and kill,” A.M.I. bought McDougal’s tell-all but didn’t publish it. (In February, my colleague Ronan Farrow published an article about what happened.)

We already knew that, shortly before the election, Cohen paid the porn star Stormy Daniels a hundred and thirty thousand dollars to secure her silence about her claim that she, too, had an affair in 2006 with Trump. But it’s still not clear what role, if any, Cohen played in the Enquirer’s decision to buy McDougal’s story. “In the September 2016 conversation, Cohen and Trump were discussing a plan by Cohen to attempt to purchase the rights to McDougal’s story from AMI for roughly $150,000,” the Washington Post reported. “Trump can be heard urging Cohen to make sure he properly documents the agreement to buy the rights and urges him to use a check—rather than cash—to keep a record of the transaction.” As far as we know so far, the transaction between Cohen and A.M.I. was never completed.

The new revelation suggests that the Trump campaign was lying when, a few days before the 2016 election, it denied Trump had any knowledge of the A.M.I. deal with McDougal. Of course, Trump may not give a hoot about being proved a liar, yet again. But his friend Pecker and A.M.I. could be in trouble, because buying and killing the story on Trump’s behalf could be considered an undisclosed campaign contribution. “If one of the options was buying it”— McDougal’s story—“from AMI and AMI convinced them they didn’t need to buy it, that bolsters the argument that it’s a campaign contribution,” Lawrence Noble, a former lead counsel for the Federal Elections Commission, told the Post’s Philip Bump.

Is this tape the only one Cohen made? On Friday, a few hours after the Times’ story broke, CNN.com reported, “Cohen has other recordings of the President in his records that were seized by the FBI, said both a source with knowledge of Cohen’s tapes and Giuliani.” The CNN story also said, “There are other tapes of Cohen and other ‘powerful’ individuals that the FBI seized beyond the President that could be embarrassing for the people on the tape and for Cohen, according to a source familiar with the tapes.’’ If this story is accurate, it seems likely that at some point, we will learn a good deal more about Cohen’s recordings.

Two other big questions remain: Who leaked the story about the Trump tape, and why? It is possible that Cohen or one of his lawyers did the leaking, although it isn’t clear, if so, what their motive might have been. Someone connected with the U.S. Attorney’s Office in Southern District of New York might have been responsible, although it’s not even clear that prosecutors in that office are yet in possession of the tape. Another possibility—perhaps the most likely one—is that Giuliani or someone else in the Trump camp was responsible, either because of a desire to change the subject from Putin and Russia, or because the Trump team knew the tape’s existence would emerge eventually and wanted to get ahead of the story.

“It helps us, rather than hurts us,” Giuliani told the Wall Street Journal. For one thing, it “bears out the fact” that the President didn’t know about A.M.I.’s payment to McDougal until Cohen told him about it. And second, Trump wanted the deal that Cohen was proposing to do with A.M.I. “done in a regular way that was transparent. You just don’t do any form of an illegal tax or campaign-finance violation by check.”

Giuliani was trying to spin the news in Trump’s favor, of course. The news of the tape confirms that, at least in the case of McDougal, Cohen kept the President fully informed about his efforts to buy a woman’s silence. In addition to blowing up the White House’s prior version of these events, this raises the question of what else Cohen did for Trump, and what he might tell federal prosecutors, including the special counsel Robert Mueller, about these activities. There has been much speculation about this, of course. Cohen worked on an abortive effort to develop a Trump Tower in Moscow. He also pushed a proposed peace deal for Ukraine, the terms of which favored Russia. And after Trump was elected, a financial firm with close ties to a Russian oligarch, Viktor Vekselberg, hired Cohen as a consultant.

The pressure on Cohen is increasing, and it has been widely reported that he is thinking about coöperating with the Feds in return for a plea deal. As well as looking into what Cohen did for Trump, prosecutors are reportedly investigating whether he obtained bank loans fraudulently by inflating the value of some taxi medallions that he owns. Earlier this month, Cohen hired a new legal team, which includes Lanny Davis, a Democrat who helped defend Bill Clinton during the Whitewater investigation. In an interview with George Stephanopoulos, of ABC News, Cohen appeared to indicate that his loyalty to Trump was wavering. “My wife, my daughter, and my son have my first loyalty and always will,” he said. “I put family and country first.”