I don’t know. His baseline point is certainly true, that attorney-client privilege wouldn’t shield a conversation in which a lawyer and his client are conspiring to commit fraud. But what’s the fraud?
Napolitano says the fraud is the “catch and kill” deal signed between Karen McDougal and AMI, the parent company of the Enquirer. AMI bought the rights to her story of a relationship with Trump but instead of publishing it they sat on it. Furthermore, Napolitano adds, the tape captures Trump and Cohen discussing buying the rights from AMI. He seems to think that Trump plotted to use the Enquirer to launder an unreported contribution to his own campaign in the form of a hush-money payoff to McDougal, with AMI fronting a $150,000 payment to her and then Trump reimbursing AMI. In the guise of a tabloid newspaper buying a juicy story from a former mistress, Trump managed to silence someone who might have jeopardized his electoral chances in the home stretch of 2016.
But wait a sec. For starters, no payment from Trump to AMI was ever made. AMI ended up retaining the rights to McDougal’s story. How can the crime-fraud exception to attorney-client privilege be implicated when no fraud was actually committed (by Trump or Cohen, at least)? Plus, remember the timeline. The conversation between Trump and Cohen was recorded sometime in September 2016, a month after AMI signed the deal with McDougal. The so-called fraud had already been completed by the time Trump and Cohen had their chat on the tape. How can the audio suggest inducement of a fraud when the conversation happened after the deal was already done? There’s nothing on the tape to suggest that Trump and Cohen had discussed this with AMI before the company made a deal with McDougal, is there?
*Maybe* more evidence will come out that shows that. But it’s at least conceivable that AMI bought the rights to McDougal’s story on its own initiative and then let Trump know, triggering Trump’s and Cohen’s interest in buying those rights from them. No fraud by Trump in that case. And it’s also conceivable, although reeeeally unlikely, that AMI bought McDougal’s story with an eye to possibly publishing it if it was juicy enough. That’s borderline preposterous given Trump’s friendship with AMI chief David Pecker, but rest assured that that’s what the Enquirer will argue if the FEC comes knocking or McDougal tries to sue them for fraud herself. “We were genuinely interested in running the story! It just so happened that there wasn’t enough evidence to corroborate some of what Karen claimed. Newspapers kill stories every day because they just don’t have the goods.”
WaPo makes a good point about what the tape does show, though. Two things. First, Trump and Cohen seemed to be discussing the McDougal payoff explicitly in the context of the campaign and, second, Cohen seems to be acting as a de facto agent of the campaign in maneuvering to silence McDougal before Election Day. Those are both troublesome things for Trump — not because of McDougal’s situation but because of the payoff to Stormy Daniels, which *was* actually completed and which would be a legal problem for him if it’s deemed to have been made for the purpose of influencing an election, i.e. an unreported campaign contribution. I wrote last week after news of the Cohen recording first emerged that it sounded like it would be damaging to Trump mainly as evidence of what his intentions might have been towards Daniels, not McDougal. WaPo’s on the same page. If Trump was interested in silencing former mistresses to protect his presidential chances, as the recording suggests vis-a-vis McDougal, then logically he was interested in silencing Stormy for the same reason. That would be a problem for the FEC.