But … but …
— Rebecca Ballhaus (@rebeccaballhaus) July 20, 2018
The first point to emphasize about this NYT scoop is that Trump and Cohen were apparently chatting about a payment to Karen McDougal, not to Stormy Daniels. A recording of Trump chatting about paying Stormy would be a big deal as it would prove knowledge of the hush-money deal, something Trump has consistently denied. It would also leave him on the hook for an unreported campaign contribution, a violation of federal law. McDougal, however, never received any money from Trump or Cohen. Her payoff came from his cronies at the National Enquirer, part of the “catch and kill” deal in which they bought the rights to her story about a relationship with Trump and then never ran it.
Of course, if there’s something on the recording suggesting that the Enquirer acted at Trump’s and Cohen’s behest in silencing McDougal, that would be interesting too. One of the legal questions floating around about the Enquirer’s catch-and-kill practices for Trump is whether payments it made to third parties might themselves qualify as unreported contributions to his campaign. That’s a thorny issue because the Enquirer’s a newspaper and normally the First Amendment would protect the press from legal liability in pursuing stories. But if the payment wasn’t for the purpose of producing journalism but rather to hush up a former mistress who had information that might damage Trump’s campaign, why should the Enquirer be shielded from campaign finance rules any more than it would be if it had made an outright donation to Trump 2016? A recording of Trump suggesting coordination with the Enquirer to pay hush money would obviously deepen that question.
Anyway. We’ve known for months that Cohen made tapes. What we didn’t know is how many he had, what topics they covered, and most importantly whether Trump’s voice appeared on any of them. We have an answer to the last question now.
Rudolph W. Giuliani, Mr. Trump’s personal lawyer, confirmed in a telephone conversation on Friday that Mr. Trump had discussed the payments [to McDougal] with Mr. Cohen on the tape but said the payment was ultimately never made. He said the recording was less than two minutes and demonstrated that the president had done nothing wrong.
“Nothing in that conversation suggests that he had any knowledge of it in advance,” Mr. Giuliani said, adding that Mr. Trump had directed Mr. Cohen that if he were to make a payment related to the woman, write a check, rather than sending cash, so it could be properly documented.
“In the big scheme of things, it’s powerful exculpatory evidence,” Mr. Giuliani said.
It’s powerful … exculpatory evidence?
All right, deep breath. One obvious question is who leaked and why. Was it the U.S. Attorney’s office, wanting to put the fear of God into Trump by teasing hard evidence they might have about wrongdoing? The Times cites “lawyers and others familiar with the recording” but goes on to say later that “Mr. Cohen’s lawyers discovered the recording as part of their review of the seized materials and shared it with Mr. Trump’s lawyers,” per three sources. That makes sense. Cohen has spent the last few months wondering aloud whether he should roll over and cooperate with federal prosecutors in an apparent bid to get the Trumps to pick up the tab for some of his crushingly exorbitant legal fees. No dice so far! This is probably Team Cohen’s latest gambit to put pressure on Trump to take care of him, leaking sensational news about secret recordings involving payoffs to Playmates on tape. Cohen’s telling Trump in the starkest way he can that he should much prefer to have him as a friend than an enemy.
Another question: The recording is less than two minutes? Realistically, how incriminating could that be? It seems like not nearly enough time to say something meaningful about a matter as complicated as hush money to McDougal. Either the audio shared with Trump’s team is just a snippet of a longer phone conversation or it’s part of a *series* of phone conversations about McDougal. Either way, the implication that Cohen has more on tape — and maybe not just about McDougal — is unmistakable. Trump must have had a panic attack when his lawyers got the copy of the recording about McDougal from Cohen’s team.
The other unmistakable implication is that if Trump knew about McDougal’s interest in hush money from Cohen, he probably knew about Daniels’s interest too. And if that’s true then we’re right back to the point I made up top about campaign finance violations. (That would also fit with the theory that Team Cohen gave the audio to Team Trump to try to pressure Trump. If they really did discuss paying off Daniels, contra Trump’s public assertions, Trump would now have to assume that Cohen has recordings of those phone conversations too.) There’s one important point in the timeline, though: The Times notes in the lede of the article that the recording of Cohen and Trump discussing McDougal was made “two months before the presidential election,” i.e. presumably September 1st or later. McDougal, however, entered into her hush-money deal with the Enquirer on August 5th of that year. Why were Cohen and Trump chatting about possible payments to McDougal if her silence had already been purchased by the Enquirer?
And why the hell would Trump have preferred a paper trail in the form of a check to McDougal to cash payments? I don’t understand Rudy’s explanation at all.
There are updates coming. Stand by.
Michael Cohen had other recordings of the president in his records that were seized by the FBI, according to Rudy Giuliani and a source with knowledge of Cohen’s tapes, per @DanaBashCNN @GloriaBorger https://t.co/nDFmXgIhdF
— Manu Raju (@mkraju) July 20, 2018
Ed suggests an alternate theory for who leaked: It was Giuliani himself, following the same practice he used on Hannity’s show months ago when he famously disclosed that Trump had reimbursed Cohen for the payments to Stormy Daniels after all. Rudy’s approach to bad facts is to leak them yourself so that you can put your own spin on them right out of the gate. If he and Trump feared that news of the recordings was destined to leak anyway, he might have done it himself to get in front of it.
Update: The ultimate question is why Cohen would have made recordings of his conversations with Trump at all, particularly when they involved business as shady as payoffs to former mistresses. It’s hard to escape the possibility that Cohen recorded him specifically because he wanted leverage just in case a prosecutor came knocking on his door one day. Tapes of Trump discussing embarrassing or criminal matters could either be traded to a D.A. for leniency or ransomed to Trump himself for financial support during an investigation. I can understand Cohen secretly recording adversaries/business associates so that he’d have evidence against them if a deal went bad but I can’t think of any reason to record his boss/friend/client except as an “in case of emergency, break glass” option.
Update: How many recordings are we talking about here?
More, via @DanaBashCNN @GloriaBorger: Michael Cohen had other recordings of Trump in his records seized by FBI, per Rudy Giuliani & a source w/knowledge of Cohen's tapes. “Definitely all kinds of tapes out there,” one of the sources said.
— Oliver Darcy (@oliverdarcy) July 20, 2018
— Allie Malloy (@AlliemalCNN) July 20, 2018
Update: Ah, okay. This may explain why Trump and Cohen were discussing payments after McDougal’s silence had already been purchased by the Enquirer’s parent company, AMI. It wasn’t McDougal who’d be receiving the payments, according to WaPo. It was AMI:
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, according to one person familiar with recording.
On the tape, 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, the person said.
It is unclear why Cohen and Trump sought to purchase the story from AMI and then did not complete the transaction.
They weren’t talking about signing McDougal to a hush-money deal. They were talking about buying the rights to the hush-money deal — sorry, I mean the, ahem, “rights to my story” deal — that she’d already signed with AMI. Which sounds, frankly, like an attempt to launder hush-money payoffs through AMI: Instead of Trump paying mistresses directly, his buddies at the Enquirer would pay them and then he’d pay the Enquirer for the rights they had purchased from the mistress. Not only does AMI get its money back but then Trump himself can enforce the mistress’s silence without needing to worry that AMI might stab him in the back by running her story. Trump didn’t want his “friends” to have leverage over him, let alone his enemies.
But ultimately they didn’t pull the trigger. How come? Maybe they feared that a transaction between Trump and AMI for the rights to McDougal’s story would be viewed unequivocally as a campaign contribution, in which case Trump would have to report it. Better to let AMI hold onto the rights and claim “journalism” for why they didn’t report it.