true crime

A Lawyer Told Us How the Cohen Tapes Could Hurt Trump

The only question is how much dirt the president's old fixer has—and how desperate he is to unleash it.
July 25, 2018, 9:32pm
Left Image: (Photo by BRENDAN SMIALOWSKI/AFP/Getty Images)Right Image: Photo by TIMOTHY A. CLARY/AFP/Getty Images)

On Tuesday, rogue Trump fixer Michael Cohen snuffed out any lingering hope of reconciling with his old boss when CNN broadcast a recording of the two men talking about how to keep a former Playboy model's allegation of an affair quiet in the run-up to the 2016 election. The tape, provided to the network by Cohen's attorney Lanny Davis, revealed discussions between Trump and Cohen about purchasing the rights to Karen McDougal's story of a lengthy sexual relationship with the now-president back in 2006 and 2007. The audio, which includes Trump referring to "cash," is muddled at times, and it's impossible to know exactly what the men are getting at—in fact, both Trump's lawyer Rudy Giuliani and Davis, on behalf of Cohen, quickly claimed it somehow bolstered their own opposing accounts of what happened in the long, strange, shitty soap opera that is American politics right now.

In the broader constellation of legal dangers encircling this president, from Robert Mueller's investigation of his campaign's alleged collusion with Russia to lawsuits (one of them inched ahead Wednesday), the Cohen saga might seem like small potatoes. But it arguably amounts to the most clear and present danger to Trump because Cohen played such an intimate role in so many of the president's financial, legal, and personal schemes, from burying damaging stories to plotting investments abroad.

We've long known Cohen was in deep shit—that federal prosecutors were probing his role as a conduit for shady payments that amounted to hush money in the run-up to election day. But Trump, too, faces potential campaign-finance-related criminal liability if he knowingly received what amounted to a financial contribution when American Media, Inc. bought McDougal's story with no intention of publishing it in 2016. After all, the company's CEO, David Pecker, was a longtime friend of Trump's who is referenced on the tape, and after buying it, AMI sat on it, only relinquishing rights after McDougal successfully sued them this year. That has bearing on whether the purchase was for journalistic reasons (legal) or political ones (not so much).

Basically, what we still don't know is how badly his old consligiere—and Trump himself—apparently conspiring with a friendly businessman to make a dirty story go away could blow up in their faces. But hungry for some perspective on what the tape means for Cohen and his old boss, I called up Jonathan Turley, a law professor at George Washington University who testified to Congress during the Clinton impeachment saga and has written about the tapes.

VICE: What does this tape actually show?
Jonathan Turley: It's not the exculpatory moment that [Trump lawyer Rudy] Giuliani described before its release. The negatives outweigh the positives for the Trump team. The most prominent concerns for the defense should be the discussion of [AMI executive] David Pecker. Trump and Cohen call Pecker a dear friend and refer to the purchasing of the rights to McDougal's story—what's striking about [that] is that neither Trump nor Cohen express any question that Pecker would, indeed, sell the rights to the story. That's curious since Pecker had only recently purchased the rights to the story and insisted he did so for journalistic purposes. It would be rather odd for Pecker to purchase the rights to the story and then turn around and sell it to a shell corporation under this scheme that Cohen was describing.

OK, and that has bearing on the broader possibility of a crime—that this purchase by Pecker, if it were on behalf of Trump as a political favor rather than a personal one and Trump and Cohen considered acquiring it themselves, that it amounted to a donation that was unreported and therefore a federal campaign finance violation, right?
That certainly fulfills the narrative that many people have of the Pecker contract—that it was, indeed, an effort to bury the story. Now, that does not in itself constitute incriminating evidence. After all, they never made the payment [to buy the rights from Pecker]. But it certainly supports the mosaic created of a campaign-finance violation. It certainly could be used as evidence to support that type of claim. The other negative aspect [for Trump]—first of all, what Cohen is suggesting is perfectly moronic. He has a rather impressive record of choosing the worst possible option at every stage of this controversy for his client. If he had succeeded in carrying out this plan [to pay Pecker] he would have magnified the legal risks to Trump—it would have been an exponential increase of those risks. The tape also shows that Trump is talking about his primary concern in keeping matters under control for a few weeks; that seemed to be a reference to the election. All of that works to strengthen the narrative of a campaign-finance violation. I've always said that McDougal should be of greater concern than [Stormy] Daniels [who was paid off directly by Cohen before the election to stay silent about her own alleged Trump affair].

The use of a surrogate like David Pecker to remove that political danger plays easily into a campaign-finance violation.

Who would even be in a position to prosecute a violation like that? The Federal Election Commission (FEC)?
It would start with the FEC. It would also involve the Department of Justice. The DOJ policy has not changed—it is certainly true that this is a crime that is relatively rare for prosecution. But the Department of Justice never rejected its premise of the [former Democratic presidential candidate and alleged adulterer] John Edwards case—for all intents purposes, they still view this type of third-party payment as a potential in-kind campaign-finance contribution. This case could actually be stronger than the Edwards case [which ended in mistrial]. The nexus to the campaign is tighter. The existence of this tape is very tempting evidence for any prosecutor. There is a real danger here of a campaign-finance violation charge.

But can a sitting president even be indicted for anything? That remains in dispute, right?
You're absolutely correct. This has been one of the longest debates among constitutional experts. I've always maintained that a sitting president could be indicted. I testified during the Clinton impeachment hearings and took that position at that time as well. I don't see the Constitutional argument that the president has some form of immunity while in office as an individual from a criminal charge. I also think that the practical arguments being made [about] interfering with a president carrying out his duties are often exaggerated. If you take a look at how long it takes for these cases to get to prosecution, it's doubtful that any president would even face a trial during a single term.

But ultimately it does not matter, for two reasons. One is Special Counsel Mueller is required to follow Department of Justice guidelines and rules [discouraging prosecution of a sitting president]. And I expect that Rosenstein would insist on the policy being followed. So he's unlikely to indict him in office, but here comes the second reason: Most election violations have a five-year statute of limitations. So Mueller could do one of three things. he could just issue the report detailing the violation and leave the question of later indictment open. Two, he could indict someone like Michael Cohen or David Pecker and name Donald Trump as an unindicted co-conspirator and could certainly later issue an indictment of Trump. And third he could simply wait until the end of the first term. Unless Trump is elected to a second term, he would have a clear field to indict Trump at that point.

How big of a deal is the check versus cash thing here? The audio is being portrayed by Giuliani as showing the president wanting it to be done via check, so as to document it, and by Cohen's camp as Trump favoring cash for shadier reasons.
Anyone who suggested a cash payment of this size would only be motivated by the lack of a paper-trail. While Giuliani said he had this discussion with plenty of clients, I thought that was rather surprising—I've never had a discussion with a client about showing up with a briefcase with $150,000 in cash. That's not something most lawyers feel comfortable in doing.

How do you read Cohen's lawyer signaling he doesn't want a pardon, that he's willing to speak to prosecutors—is it as simple as it looks or some kind of tactic designed to elicit a pardon?
Well if this is a pardons strategy it is skillfully disguised. I can't imagine why Trump would seriously consider a pardon after the last week. He has a former counsel who has secretly taped him and issued a series of highly antagonistic statements.

Part of the reason they may have made this decision is it would have been difficult for Trump to offer a pardon that would meet the needs of Michael Cohen. Michael Cohen would not necessarily be in the clear with a pardon. Trump would have to pardon him for a variety of alleged crimes dealing with his business transactions. And even then, there's a risk of state prosecution.

There's nothing redemptive here for Michael Cohen. I'm not so sure what the strategy is, but a pardon seems far afield from any reasonable expectation.

Does Trump apparently affirming that a payment is necessary or expressing what appears to be knowledge of one mean anything of substance, legally, or just make him look like a liar?
The president has not given a statement to federal investigators. The president is not at any clear legal risk in contradicting prior public statements. Politicians are not known to be paragons of truth and accuracy. But the tape does indicate some familiarity with the payment of $150,000—the question is when Donald Trump was informed of this Cohen strategy.

You wrote yesterday that Cohen is clearly a foe of the president. That's only clearer now, huh?
I think that this was Cohen's moment on the beach. This is the moment where Cortés burned his ships to confirm that there's no going back. Michael Cohen just burned his ships on the beach. It's hard to imagine that he can go back to any type of positive relationship with his former client.

How does this tape release stack up in the broader saga in terms of the president and the danger to him?
It is not the exculpatory moment described by Giuliani. However, it is also not a smoking gun of criminality against Trump. In many ways, the tape confirmed what people have been saying about the nature of the David Pecker contract.

That it was essentially a catch and kill—a way to bury a story?

And that's defensible if it was because it's an embarrassing family thing, but not if it was a threat to his candidacy?
The greatest defense of Donald Trump is that he had one of the oldest motivations in history: that he wanted to [prevent] an alleged affair from becoming a public scandal for the purposes of his own marriage.

That remains perhaps the most reassuring thing for the president. Obviously, things get more interesting if Cohen actually flips. That has basically happened, but he hasn't agreed to testify for prosecutors or anything that we know of, right?
It's still not clear what else Michael Cohen may have. He is clearly moving beyond a pardon strategy and maybe moving toward a deal with the prosecution. But he has to have deliverables. And we simply don't know what else he has.

This interview has been lightly condensed and edited for clarity.

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