The New York Times (NYT) revealed their discovery Friday of a tape lawyer Michael Cohen secretly recorded of himself and his then-client Donald Trump discussing a payment to a Playboy model in the lead-up to the 2016 election.
The Times report indicates the FBI is already in possession of the tape from their controversial raid on Cohen’s office in April where they seized millions of electronic and hard-copy documents.
Trump defense team leader Rudy Giuliani confirmed to the Times both the tape’s existence and the fact it concerned discussion of payment to Karen McDougal, a former Playboy Playmate who claims to have had an affair with Donald Trump in 2006. Giuliani denied any actual payment ever took place. “The recording was less than two minutes long and demonstrated that the president had done nothing wrong,” the Times paraphrases Giuliani.
Giuliani also told the Times that Trump insisted the payment, should it occur, be a check — not cash — so that a paper trail would exist. He said that the tape also shows Trump was just learning that AMI, the holding company of the National Enquirer, had already paid McDougal for her story but was not running it. “In the big scheme of things, it’s powerful exculpatory evidence,” Giuliani told the Times.
According to the New York Times, “Ms. McDougal sold her story to The National Enquirer for $150,000 during the final months of the presidential campaign, but the tabloid sat on the story, which kept it from becoming public. The practice, known as “catch and kill,” effectively silenced Ms. McDougal for the remainder of the campaign.”
Any payment being discussed was over and above that. The Times believes that “[p]rosecutors want to know whether that violated federal campaign finance laws, and any conversation with Mr. Trump about those payments would be of keen interest to them.”
The Washington Post later claimed its sources indicated that Cohen and Trump’s conversation involved a potential payment to AMI over the rights to the story, not to McDougal herself, the 1998 Playmate of the Year who later told CNN she had sexual encounters with Trump “dozens” of times.
As is good journalistic practice, the New York Times did not reveal how they came to know of the recording, which is very likely covered by attorney-client privilege, raising concerns that the tape was leaked to the Times by a law enforcement source or by Cohen himself.
According to CNN’s Dana Bash’s sources, President Trump himself appears to believe the latter possibility — that Cohen himself leaked the tape, likely in violation of his obligations as an attorney to his client:
Via @DanaBashCNN @GloriaBorger: When informed about the tape, the president said, “I can’t believe Michael would do this with me,” according to a source familiar with the tapes.
— Oliver Darcy (@oliverdarcy) July 20, 2018
Prosecutors will not be allowed to hear privileged material as they build a case against Cohen. A federal special master in New York City has already prohibited prosecutors from accessing over 2,500 documents seized from Cohen because they are privileged, upholding nearly two-thirds of the privilege assertions Cohen’s defense team has made. It is not clear if this tape was among those documents.
Cohen’s making the recording itself was not a violation of wiretapping laws. Like a majority of states, New York has a “one-party consent” wiretap law meaning it is legal to make a recording of a private conversation so long as one of the people involved is aware and consents to the recording. In this case, the man who made the tape, Cohen, was a participant in the conversation.
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