Tape puts Cohen, Trump in crosshairs
A payoff conspiracy. Was the objective criminal?
Since the release of an audio tape of Michael Cohen talking to Donald Trump, the focus has been on whether Trump suggests paying off model Karen McDougal, with whom he allegedly carried on a 10-month affair in 2006, with cash or a check.
That question, however, is swamped by several larger factual points the tape establishes, and others that it suggests.
First, the tape clearly demonstrates two men carrying out a common scheme, or, in the terms of the law, a conspiracy. While Teams Trump and Cohen are busy trying to disparage each other, they obscure the chief fact that for purposes of whatever conduct they are pursuing on the tape, they are joined at the hip. Cohen’s liability is Trump’s; Trump’s liability is Cohen’s.
Second, given that the two are acting in concert, the question becomes what is their objective and is it criminal? This will ultimately be a question for a jury. Prosecutors in the Southern District of New York have a mountain of evidence in addition to the tape, and likely Cohen’s own testimony. But the evidence of the tape alone is that the goal was to conceal the McDougal payout in order to further Trump’s electoral prospects.
The entire conversation is about the campaign, beginning with Cohen’s congratulations to the candidate on his poll numbers. The discussion is also about suppressing the records of Trump’s divorce from Ivana (which allegedly included an accusation of spousal rape) and includes Trump’s statement, “All you’ve got to do is delay for —,” which is most naturally construed as a delay until the election. The conversation takes place in September 2016, in the final weeks before Election Day. Furthermore, there is no indication of any other purpose, for example shielding Melania Trump from the painful revelation of the affair.
On the contrary, one of the most telling aspects of the tape — and an illustration of why audio evidence is usually a prosecutor’s dream — is the evident nonchalance and cold-bloodedness with which Trump pursues the apparent hush-money arrangement.
The third issue is if the men are acting in concert, and if the objective is to suppress information to aid Trump’s electoral prospects, what legal liability that might entail. At least three kinds of fraud charges could be pursued.
It would have been awkward to say the least to list a $150,000 in-kind contribution from the National Enquirer to buy McDougal’s silence on a campaign-disclosure form, and the Trump campaign did not. That means that they may very likely have broken campaignfinance laws that require full disclosure of contributions. A willful violation of that sort is criminal.
Wire fraud is another possibility because Trump, Cohen and others manipulated McDougal to keep her story bottled up. There appears to be evidence that Trump pal David Pecker, the CEO of American Media Inc., which owns the Enquirer, bought the rights to her story for $150,000 and planned to “catch and kill” it so it would never see the light of day. The manipulation may have included supplying McDougal with an attorney — the same one Cohen funneled to Stormy Daniels — who was at least somewhat in Cohen’s pocket and failed to act in her best interest.
In addition, the sort of arrangement Trump and Cohen were pursuing requires incorporation, banks and other administrative inconveniences. Cohen might have misled bankers about the purpose of the funds, so prosecutors could look into bank fraud.
This is not to say a Cohen indictment — almost certainly forthcoming unless he decides to cooperate — would name Trump as an unindicted co-conspirator. It could, but that decision would come from the highest reaches of the Justice Department and raise weighty questions of constitutional law.
It’s important to remember that the tape’s political and legal implications are not the same. Prosecutors don’t care about the political mud wrestling between the two camps. They are pursuing facts and law to where they take them: the statutory elements that spell out criminal behavior in the U.S. code. And with the tape, that mission now has Cohen and the president directly in the crosshairs.