Michael Cohen, the longtime lawyer to Donald Trump, has a habit of recording conversations with his clients. One concern when the FBI raided his home, hotel room, and office back in April was that authorities might get their hands on tapes of Cohen and Trump – and apparently, they did.
The New York Times broke the news Friday, July 20, that Cohen had secretly recorded a discussion about whether to pay for former model Karen McDougal’s story about a 10-month affair with Donald Trump back in 2006. Trump has denied the affair from the beginning and now seems outraged that Cohen would record such a conversation – even hinting that it might be illegal. Was it? And more importantly for the president, is this the discovery that might finally close what LN’s Mark Angelides called the Clinton trap, or is it, as Ted Williams suggests, just another nothingburger?
The discussion itself allegedly took place in September 2016, just two months before the election. While neither Cohen nor Trump have been charged with anything, it seems the goal of the FBI investigation is to determine whether payments made to kill stories of alleged extramarital affairs could be considered campaign expenses, and if so, whether it violates campaign finance laws.
McDougal claimed that she had an affair with Trump shortly after the birth of his son, Barron. She sold that story to The National Enquirer for $150,000, but they never ran it. The president’s new attorney, Rudolph Giuliani, confirmed the existence of both the conversation and the recording. According to him, Trump and Cohen discussed buying the story from the publication. Though they ultimately didn’t go through with it, Giuliani claims Trump told Cohen that, should he make such a payment, he should write a check rather than sending cash so that it could be properly documented.
After the news broke, the president tweeted his outrage, calling the recording inconceivable, totally unheard of, and perhaps illegal:
Inconceivable that the government would break into a lawyer’s office (early in the morning) – almost unheard of. 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!
— Donald J. Trump (@realDonaldTrump) July 21, 2018
Attorneys recording their clients is neither inconceivable nor unheard of, though whether it’s ethical or a good idea all depends on who you ask. As for Cohen specifically, it has long been known that he records his clients, and therefore what’s inconceivable is that Trump didn’t know. For that matter, unless Cohen told him otherwise, Trump should have no reason to expect not to be recorded if that’s Cohen’s known standard practice. Some might even argue that shows he was fine with it at the time.
Giuliani claims that the recording is actually evidence in the president’s favor, as it shows that either there was no prior payment or, at the very least, that Trump didn’t know of one. He also implies that by directing the lawyer to write checks for any such payments so that they can be properly documented proves that Trump was not contemplating violating the law.
Lanny Davis, Michael Cohen’s attorney, tweeted that the president’s tweet is false, and that Giuliani’s strategy is flawed. In a separate tweet, he claims that once the recording is heard publicly, it will be clear that his client did no wrong.
Fox News contributor and attorney Ted Williams said that it is very unusual for a lawyer to tape his clients and that neither he nor any other attorney he knows would. But he added, “I think we need to chill a little bit,” as this might be all for naught, that it might well be a nothingburger. The danger for both Trump and Cohen isn’t in this tape regarding an alleged affair, Williams opines, but in how many other tapes might exist that could be damaging. And Williams had a message for Rudy Giuliani, as well:
“Shut up. You’re a lawyer. You’re supposed to just see what, if anything, comes out of this. Trying to spin this thing at this time, you’re harming your client.”
But the big question is: Did anyone actually break the law? Cohen’s recording was most likely legal, as New York is a one-party consent state – meaning that as long as one person involved in a conversation consents to the recording, it’s legit. Beyond that, it’s both legal and ethical as far as the American Bar Association is concerned. The AMA’s Committee on Ethics and Professional Responsibility said in 2001 that so long as it isn’t against the law for any other reason and the lawyer doesn’t lie if the client asks directly about it, then conversations can be recorded legally and ethically – even without informing the client first.
Did either Trump or Cohen violate campaign finance law where McDougal is concerned? It seems unlikely. There is allegedly no talk of using campaign money to make the payments on the recording. However, even if there had been, no payment was made. But even if it were, it’s not like Trump was trying to hide it. The concern seems to be that Trump or Cohen used campaign finances to pay for this story but then didn’t report it as such. If Trump indeed told Cohen to write a check so that it could be properly documented, then he clearly had no intention of hiding the payment. This is further reinforced by the fact that the president refused to claim attorney-client privilege on this particular tape and that Giuliani said that conversation was never intended to be a secret.
A Big Juicy Nothingburger?
If it’s perfectly legal and even considered ethical by those in the industry for lawyers to secretly record their clients, and especially if Cohen has a reputation for doing exactly that, then the fact that he did so is not, in itself, newsworthy.
Could the buying of the story in order to kill it be considered a campaign expense regardless of what money was used? That’s certainly what the BBC seems to think the DOJ is going for. But Trump’s attorneys might argue that a wealthy businessman and publicly known figure would make that deal any day – not just while running for president.
Unfaithfulness in a marriage isn’t illegal. But it isn’t right either, and it certainly isn’t a sign of a person who can be trusted in general. However, buying silence, if indeed that’s what happened, doesn’t prove the affair occurred. It’s possible that Trump is telling the truth when he says he didn’t cheat on Melania, but that he still felt it was worth the money to keep the allegation out of the public eye.
It’s rather telling, actually, that neither Daniels nor McDougal felt the need to go public about their alleged affairs until Donald Trump ran for president. Whether the allegations are true or not, both women have a lot to gain by making such claims – money, another 15 minutes of fame, or the bragging rights of being the woman who killed a presidential campaign.
Ultimately, if President Trump violated the law, then that needs to be addressed. However, if all he is guilty of is maybe cheating on his wife, then we can move on. As mentioned before, unfaithfulness in marriage isn’t a sign that someone can be trusted, but there’s no denying that controversy and scandal have surrounded Donald Trump from the very beginning. In spite of all this, he won the presidency because of his business prowess and promises to make America great again, not because anyone thought he was a saint.