Cohen taping of ’16 session vexes Trump
Lawyer recording a client ‘unheard of,’ tweet says
BEDMINSTER, N.J. — President Donald Trump on Saturday said it was “inconceivable” that a lawyer would tape a client, responding to a report that his then-personal attorney secretly recorded a conversation in which they discussed a potential payment to a former Playboy model.
“Inconceivable that the government would break into a lawyer’s office (early in the morning) - almost unheard of,” Trump said in a Twitter post early Saturday. “Even more inconceivable that a lawyer would tape a client - totally unheard of & perhaps illegal. The good news is that your favorite President did nothing wrong!”
The comments were Trump’s first on the subject since news of the recording was reported Friday morning. The president is spending the weekend at his golf course in Bedminster, N.J.
The recording, made weeks before the 2016 election, was part of a collection of documents and electronic records seized earlier this year by federal authorities from Michael Cohen, the longtime Trump attorney.
Most states, including New York, allow for recordings of conversations with only the consent of one party; other states require all parties to agree to a recording or have mixed laws on the matter. It was not immediately clear where Trump and Cohen were located at the time the recording was made.
Cohen, in his dealings on Trump’s behalf with journalists, opposing lawyers and business adversaries, frequently taped his conversations, unbeknownst to the people with whom he was speaking. Trump also has a history of recording phone calls and conversations.
Ex-Playboy centerfold Karen McDougal says she began a 10-month affair with Trump in 2006, shortly after Trump’s wife, Melania, gave birth to their son Barron. Trump’s representatives have denied an affair took place.
In August 2016, McDougal agreed to a $150,000 payment for her story from The National Enquirer, which never published it. The National Enquirer is a division of American Media Inc. David Pecker, the chief executive of American Media, is a friend of Trump’s.
When The Wall Street Journal reported on American Media’s payments to McDougal days before the election, the Trump campaign denied knowing about them.
“We have no knowledge of any of this,” Hope Hicks, the campaign spokesman, said at the time, adding that McDougal’s claim of an affair was “totally untrue.”
Trump’s advisers have suggested that Cohen had made payments without Trump’s knowledge.
However, on the September 2016 tape, Trump and Cohen can be heard discussing a plan to buy the rights to McDougal’s story from American Media, the Washington Post reported Friday. A person describing the contents of the tape said Trump can be heard urging Cohen to make the payment by check so it’s properly documented.
Cohen no longer represents Trump. His lawyers and Trump’s attorneys were allowed to sift through the evidence seized by the FBI before its review by the government, and to ask that certain material be withheld on the basis of attorney-client privilege or because it’s highly personal or not relevant.
After learning about the tape, The New York Times approached Trump’s personal lawyer, Rudy Giuliani, for comment. A person familiar with the discussions said the president’s legal team chose not to assert attorney-client privilege over the recording.
Giuliani, the former New York City mayor, said that no payment was made and that the recording shows Trump did nothing wrong.
“The transaction that Michael is talking about on the tape never took place, but what’s important is: If it did take place, the president said it has to be done correctly and it has to be done by check,” Giuliani said.
Lanny Davis, a veteran of President Bill Clinton’s White House and a critic of Trump, is now serving as Cohen’s attorney. He said “any attempt at spin cannot change what is on the tape.”
“When the recording is heard, it will not hurt Mr. Cohen,” Davis said in a statement, noting that Cohen has not been charged with a crime.
Transparency groups and Democrats have argued that the secret efforts to silence Trump accusers, including a payment to adult-film actress Stormy Daniels, should be investigated by the Federal Election Commission as potential violations of campaign finance laws, which require disclosure of campaign expenditures. Trump’s attorneys have argued that any payments to accusers would have been made regardless of his presidential candidacy, and that no violation occurred.
The FBI investigation into possible campaign finance violations is separate from special counsel Robert Mueller’s probe of election interference in 2016 and potential obstruction of justice by those in the president’s orbit.
A PRESS MATTER
Federal authorities are investigating whether American Media at times acted more as a political supporter than in what campaign finance law calls a “legitimate press function,” according to people briefed on the investigation who spoke on condition of anonymity.
The issue is about when coverage favorable to a candidate strays into overt political activity and when First Amendment protections should apply. The National Enquirer has run articles praising Trump, and it ran articles during the presidential campaign raising concerns about his opponents, alleging poor health, extramarital affairs and the use of prostitutes.
The company completed its deal with McDougal in August 2016, paying $150,000 for rights to publish fitness columns under her name and for exclusive rights to her story about the alleged affair. By burying McDougal’s story during the campaign in a practice known in the tabloid industry as “catch and kill,” critics say, American Media protected Trump from negative publicity that could have harmed his election chances, and it spent money to do so.
After the campaign, McDougal negotiated permission to answer press questions about the alleged relationship, and in March she sued to break the agreement with American Media. In mid-April, just days after the FBI raided Cohen’s home and business, American Media agreed to settle and return the rights to her story.
Prosecutors did not warn American Media before subpoenaing executives there in the spring, people with knowledge of the process said. American Media, which has denied any wrongdoing, did not challenge the move.
A spokesman for the U.S. attorney’s office in the Southern District of New York, which is handling the inquiry, declined to comment.
Cameron Stracher, an American Media lawyer, indicated that the company was cooperating with the investigation.
“[American Media] respects the legitimate law enforcement activities by prosecutors in the Southern District of New York,” he said. But he suggested there was some give-and-take in what American Media was willing to share, adding that it “has asserted and will continue to assert its First Amendment rights in order to protect its newsgathering and editorial operations.”
While moves by prosecutors to subpoena journalists usually draw protests from groups that advocate press protections, there has been no rallying of support for American Media. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said his group hadn’t mounted a staunch defense in part because the publisher had not asked for help. The situation is otherwise too murky for his group to wade into, he said.
“It’s really challenging for press advocates to get behind it because, one, we haven’t been asked, and two, we just don’t know enough about the circumstances to be out with them on it,” Brown said.
Alexandra Ellerbeck, North America program coordinator for the Committee to Protect Journalists, said the group had not been focused on American Media, but added, “You don’t want people doing activity that would otherwise be illegal and putting the name of press on it for protections.”
The company, denying wrongdoing in the past, has said that any actions it took were journalistic and that any contact it had with Cohen during the campaign would have been in the context of reporting. It has also said that “Mr. Cohen and Mr. Trump have been personal friends of Mr. Pecker’s for decades.”
But if evidence shows that Cohen was consulting with American Media about the arrangement and that the intention of the deal was to protect Trump’s election prospects, then the publisher and Cohen could be exposed to election law violations.
Corporations are barred from spending money to influence election outcomes in coordination with federal campaigns and candidates. Campaigns cannot accept individual donations of more than $5,400 per election cycle.
“If this money is spent in coordination with Trump or the campaign, then it’s a contribution to Trump and the campaign, and then it’s illegal,” said Fred Wertheimer, founder of Democracy 21, a group supporting campaign finance regulation and enforcement.
In 2015, American Media paid $30,000 to a Trump Organization doorman who claimed to have damaging information. After the company bought the rights, The Enquirer chose not to run the story. Executives said that was because it did not check out.
In McDougal’s case, American Media has argued that First Amendment protections cover the right to publish as much as the right not to publish.