Secret recording may not add to legal jeopardy for Trump
WASHINGTON — A secret recording of Donald Trump discussing payments to a Playboy model has brought renewed attention to the question of whether — and how — he might have tried to block politically damaging stories ahead of the 2016 presidential election. But it’s not clear that the tape, on its own, creates additional legal problems for the president.
The September 2016 conversation between Trump and his thenlawyer, Michael Cohen, took place weeks after the National Enquirer’s parent company reached a $150,000 deal to pay former Playboy model Karen McDougal for her story of a 2006 affair she says she had with Trump. The recording captures Trump and Cohen discussing acquiring the rights to McDougal’s story and whether to pay by cash or cheque.
At issue is whether the payment the men are discussing was campaign-related and intended to influence the election, in which case it would likely be regarded as a contribution, or whether it was merely meant to shield the married Trump from an embarrassing revelation harmful to his personal life. Also important is whether the payment to McDougal from the Enquirer’s parent company, American Media Inc., functioned as a backdoor campaign contribution or as a legitimate media company expense.
“It’s a piece of evidence. It’s not a smoking gun,” Rick Hasen, a campaign finance law expert at the University of California, Irvine, said of the recording. “It’s relevant to the investigation, and it’s relevant to considering whether Trump or Cohen or AMI committed campaign finance violations, but on its own, it does not constitute proof of any violation.”
He added, “It does not establish either a motive to spend illegal or unreported money in violation of the campaign finance laws, and it doesn’t establish that any money was actually paid for this purpose.”
Trump lawyer Rudy Giuliani has said the conversation wasn’t campaign-related and that Trump and Cohen didn’t make a payment to buy the rights.
The Justice Department has been investigating Cohen for months, raiding his home, office and hotel room in search of documents related to McDougal and a separate $130,000 payment the attorney facilitated before the election to Stormy Daniels, an adultfilm actress who says she had sex with Trump in 2006.
Cohen, long a loyal counsellor to the president, has more recently signalled that he’d be open to cooperating with prosecutors.
His lawyer, Lanny Davis, released the recording to CNN in a reflection of open discord with Trump. Trump’s lawyers circulated a transcript of the call that challenged Davis’ assessment of it.
Legal experts say the case raises murky issues, especially as investigators discern the motivations behind AMI’s payment and the extent to which Cohen was involved in the arrangement.
Prosecutors could conclude that the Enquirer, which did not publish McDougal’s story as part of a tabloid strategy known as “catch and kill,” made the payment to aid Trump’s election bid in violation of campaign finance regulations that bar corporations from making co-ordinated contributions.
“If they co-ordinated to suppress this story in order to help Trump’s presidential campaign, that would be a campaign finance violation,” said Andrew Herman, a Washington lawyer. “It could be a civil violation. It could be a criminal violation.”
AMI, however, could argue that it was acting as a legitimate news organization and in the best interest of its readers by acquiring McDougal’s story and withholding it from publication.
A key question for investigators will be whether the arrangements would have taken place even if Trump weren’t a candidate because the primary purpose was to protect his reputation. Election references in the recording, including discussion of polls and anxiety over the possible release of Trump’s divorce records from first wife Ivana, may create circumstantial evidence that the campaign was a central focus.