What Trump’s insistence on “cash” payment means
President Donald Trump’s former lawyer, Michael Cohen, has released audio of a call between the two men, in which Trump clearly appears to know about the need to buy the rights to a story from a woman who alleged an affair with him. As many have noted, the audio appears to demonstrate that Trump knew in September of 2016, when the call took place, that this hush money would need to be paid.
But it also raises another important question beyond that one: Did Trump actively try to conceal that payment from future discovery at the time, as well?
Wednesday morning, Trump issued a bizarre tweet about the audio, wondering aloud: “What kind of a lawyer would tape a client?” (The kind of lawyer who was willing to represent you, Mr. President.) Trump also asked why the audio seems to abruptly cut off, which is not an unfair question but also seemed designed to distract from what is obvious about the recording, which is that Trump does not sound surprised in the least when Cohen raises the need to pay for the story of former Playboy playmate Karen McDougal, who had claimed a 10-month affair with Trump.
From the transcript: “COHEN: Um, I need to open up a company for the transfer of all of that info regarding our friend, David, you know, so that — I’m going to do that right away. I’ve actually come up and I’ve spoken —
“TRUMP: Give it to me and get me a (unintelligible).
“COHEN: And, I’ve spoken to Allen Weisselberg about how to set the whole thing up with ...
“TRUMP: So, what do we got to pay for this? One-fifty?”
This appears to indicate that Trump knew about the need to pay $150,000 (note that he cited the figure unprompted, suggesting previous knowledge of it) to David Pecker, the chief executive of American Media Inc., which had paid that sum to McDougal for the story. The discussion that follows indicates that Trump worried what might become of the story if something happened to Pecker, suggesting he wanted to own the story as protection. Then later comes this: “TRUMP: (unintelligible) pay with cash ...
“COHEN: No, no, no, no, no. I got it. “TRUMP: ... check.” Trump lawyer Rudolph W. Giuliani is claiming that Trump actually said “don’t pay with cash.” But if so, it’s unclear why Cohen followed that with a “No, no, no, no, no.” (It’s possible Cohen meant “No, I would never do that.”) Regardless, this question is important for a reason: If Trump did want a cash payment, that might have been to conceal evidence — at the time — of what may have been a violation of campaign finance law. Other aspects of the call show Trump preoccupied with the election, and as The Post’s Philip Bump points out, this suggests Cohen was, for all practical purposes, making this payment as an “agent” of Trump’s campaign, making this a potential undisclosed campaign expenditure, which could be illegal.
Former federal prosecutor Barbara McQuade told me that if this is the case, the question of whether Trump wanted the payment made in cash becomes more relevant — because it goes to the heart of Trump’s intentions.
“If this expenditure was made on behalf of the campaign and it was not disclosed, and it was done willfully, that’s a crime,” McQuade said. If Trump wanted that done in cash, McQuade continued, “it suggests an effort to conceal the payment. If you’re hiding things, prosecutors often see that as some indication that you believe you were guilty, that you knew what you were doing was illegal. Taking steps to cover it up does tend to establish that willfulness. That could be incriminating.”
McQuade added that in such a scenario, prosecutors could conceivably see Trump as a “co-conspirator” in a “conspiracy to violate campaign finance laws,” though McQuade added that it’s unlikely that prosecutors would bring such charges against a sitting president, even by naming him as an “unindicted co-conspirator.” Still, McQuade added that if more evidence emerged of additional instances of such payments, “the case may become more significant.”
To be clear, it’s perfectly plausible that this will turn out to be nothing. But as Timothy L. O’Brien points out on bloomberg.com, Cohen’s suggestion during the call that he briefed Weisselberg, the chief financial officer of the Trump Organization, on the arrangement is potentially important:
“Weisselberg isn’t a bit player in Trumplandia and his emer- gence on the Cohen-Trump recording — as someone possibly facilitating a scheme apparently meant to disguise a payoff — should worry the president. Weisselberg has detailed information about the Trump Organization’s operations, business deals and finances. If he winds up in investigators’ crosshairs for secreting payoffs, he could potentially provide much more damaging information to prosecutors than Cohen ever could about the president’s dealmaking.”
The newly released audio shines a light into yet another corner of the netherworld of how Trump conducted business, and if prosecutors now focus on Weisselberg, that could produce still more revelations. And by the way, Wednesday morning on ABC, Cohen’s lawyer Lanny Davis said there are more tapes of Cohen and Trump. Perhaps they will amount to nothing, But after all we’ve seen, does anyone want to bet good money on that?