No, there’s no typo in the headline. If you believe Emily Jane Fox, it’s Team Cohen that’s mad about today’s leak involving secret recordings more so than Team Trump. Why? Because, as I speculated earlier, the leak’s actually coming from Trump and Giuliani themselves, not from Cohen. They’re getting out in front of it knowing that it’ll probably come out eventually anyway, in which case it’s better that they share it with the media now replete with their own spin. Trump has seized the narrative, in other words.
"From people I spoke to today around Cohen's orbit, this is something they see as coming from the President's camp. This was a complete strategy executed in order to throw Cohen under the bus. So they see it very differently …." – @emilyjanefox w/ @NicolleDWallace pic.twitter.com/4B26sJr15u
— Deadline White House (@DeadlineWH) July 20, 2018
Assuming it’s true that Giuliani leaked the news about the recording, he seems to have done so believing that Cohen wouldn’t publicly challenge his claim that nothing damaging was said on it. Smart people don’t chatter to the media about potential evidence that may be used against them when they’re under investigation by the Manhattan U.S. Attorney, after all.
Emphasis: Smart people don’t. Other people, well…
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, who described the other recordings as mundane discussions. Another source with knowledge of the tape, however, said the conversation is not as Giuliani described and is not good for the President, though the source would not elaborate.
Just a bluff? Maybe. Cohen’s new lawyer, Lanny Davis, was coy when asked for comment:
“Obviously, there is an ongoing investigation, and we are sensitive to that,” Davis told The Daily Beast. “But, suffice it to say, that when the recording you are reading about is heard, it will not hurt Mr. Cohen. Any attempt to spin this story cannot change what is on the tape.”
He doesn’t say it’ll hurt Trump but that’s implied. I’m not sure how he can be sure that the recording won’t hurt Cohen, though. If nothing else, a lawyer surreptitiously recording a client is … unorthodox. Saying that Cohen might have an ethical problem with the state bar is the ultimate “dog bites man” story at this point, but still. Of course, if the worst thing that happens to Cohen when this is all done is that he gets reprimanded professionally for his legal practices, he’ll treat it as an almost total victory.
John Ziegler argues that if Giuliani’s telling the truth about the recording (big if!) then it’s hard to see how it might create a legal issue for Trump. There’s only so much you can say to incriminate yourself in two minutes, particularly when there’s no evidence that any money has changed hands between Trump and Karen McDougal. Her deal was with AMI, the Enquirer’s parent company; Trump and Cohen were allegedly recorded discussing whether to buy the rights to her story from AMI, but the deal never happened. What crime could he have conceivably committed? I think Ziegler’s right that there’s little reason to think the recording poses any problem for Trump with respect to McDougal…
…but what about with respect to Stormy Daniels? What I mean is, what if the recording captures Trump talking about making sure that McDougal stays quiet before Election Day? The big risk for him legally with respect to Daniels is that the hush-money payoff will be seen by the FEC as an unreported campaign contribution; the touchstone for a campaign contribution is that it was made with the intention of influencing an election. John Edwards beat the rap on that charge several years ago by showing that payments to his own mistress were made to spare his family from embarrassment, not for the purpose of helping his presidential campaign by silencing someone who might damage his political prospects. No doubt Trump and Cohen will make the same argument about the payoff to Stormy. But if the call about McDougal shows Trump worried about the electoral repercussions of chatty former mistresses, that’s evidence that any and every such payment he made in late 2016 had the same motive — which would mean the Stormy payment is a campaign contribution. That’s trouble.
It could be bad for Trump in a different way too, notes Philip Bump at WaPo. If something was said on the call to suggest that AMI had bought the rights to McDougal’s story with no intention of actually running it, that could place AMI and its boss, Trump pal David Pecker, at risk of being charged with unreported campaign contributions to Trump 2016. And Pecker’s probably in much the same posture vis-a-vis Trump as Cohen is: He may know things about Trump that the president would rather the public not know, and if suddenly he’s under legal pressure, he might be inclined to trade his knowledge of those things for leniency. Did Trump or Cohen say anything on the recording to suggest that AMI was engaged in “catch and kill” rather than in honest journalism, wonders Bump?
“If one of the options was buying it from AMI and AMI convinced them they didn’t need to buy it, that bolsters the argument that it’s a campaign contribution because that would be a discussion with AMI about it,” Noble said. There are ways in which media outlets can engage in political activity, he said, but this likely wouldn’t count. A conversation in which AMI assured Cohen and Trump that the story would be buried “would be strong evidence that AMI made a campaign contribution,” he said. “That this wasn’t a journalistic decision, that this was in coordination with the campaign.”
That wouldn’t pose any legal problem for Trump (I think?) but it might pose a legal problem for AMI, and a legal problem for AMI is potentially a political problem for Trump depending upon what Pecker’s willing to share.
By the way, Michael Avenatti revealed today that he and Cohen ran into each other at a restaurant in Manhattan a few days ago, which is fascinating for many reasons, starting with the fact that apparently no punches were thrown. “Michael and I conversed and I found that meeting to be productive,” Avenatti said to CNN. “That meeting could ultimately end up being a critical meeting.” That’s super, but it’s a basic ethical rule that lawyers aren’t supposed to converse privately with a party to a case they’re involved in if they know that party’s represented by counsel. All discussions are supposed to stay between the lawyers so that everyone’s attorney is fully informed about developments. What was Avenatti doing talking to Cohen given that they’re on opposite sides of litigation over the hush-money agreement in California?
I’ll leave you with this as I crack open a bottle of whiskey:
Breaking: @MichaelAvenatti says if Michael Cohen "was prepared to do the right thing", I would "absolutely consider" representing him.
"Michael Cohen and I had a chance to converse" we had "a very positive meeting" pic.twitter.com/AGA0MTvgmq
— TheBeat w/Ari Melber (@TheBeatWithAri) July 20, 2018