This combination photo shows President Donald Trump and attorney Michael Cohen. The audio recording of Trump and his then-lawyer, Cohen, captures the two men discussing hush money payments to a former Playboy model alleging an affair.(AP Photo)

Legal implications on Trump or Cohen unclear on secret tape

July 27, 2018 - 10:17 am

WASHINGTON (AP) — 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 then-lawyer, 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 check.

At issue is whether the transaction the men are discussing was campaign-related, in which case any payment would likely be regarded as a political contribution, or whether it was merely meant to shield the married Trump from a personally embarrassing revelation.

That distinction matters in analyzing the transaction between McDougal and the Enquirer's parent company, American Media Inc., as well as any subsequent conversations about it between Trump and Cohen: A campaign contribution meant to influence the outcome of an election would be subject to campaign finance laws in a way that a payment for purely personal reasons might not be.

"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 adult-film actress who says she had sex with Trump in 2006.

Cohen, long a loyal counselor to the president, has more recently signaled 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 coordinated contributions.

"If they coordinated 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 and if the primary purpose was to protect his reputation.

Though the brief recording doesn't shed much light on motive, election references on the tape, 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 men were thinking about the campaign during the conversation.

"I think the election was certainly on everybody's mind, but that doesn't make anyone's acts an election contribution or expenditure," said Craig Engle, former general counsel to the National Republican Senatorial Committee.

Daniel Petalas, former general counsel at the Federal Election Commission, said the recording could be valuable to prosecutors to the extent it reveals Trump's and Cohen's intent. A former Justice Department prosecutor, Petalas said it was notable Trump seemed concerned that divorce papers could be unsealed, suggesting sensitivity to not wanting embarrassing information out before the election.

He said even if the conversation alone doesn't establish wrongdoing, it could nonetheless be valuable to investigators reviewing the separate payment to Daniels as they examine a potential pattern to subvert campaign finance laws.

Lawyers for Trump and Cohen have made different representations about whether the recording shows Trump wanting to make the payment via cash or check. The Trump team's transcript says he said "don't pay with cash" and wanted it done by check. Davis has disputed that.

But that distinction probably doesn't matter.

"The question comes down to whether or not there's a payment, by any means, that violated the amount and source requirements of the law," Petalas said. "Paying by check doesn't change anything."

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