FILE - In this Sept. 19, 2017, file photo, Michael Cohen arrives on Capitol Hill in Washington. A secret recording between Donald Trump and Cohen discussing payments to a Playboy model has brought renewed attention to the question of whether the candidate and his lawyer sought to stymie politically damaging stories from women ahead of the 2016 presidential election. But it’s not clear that the brief recording, on its own, creates additional legal problems for either man. (AP Photo/Pablo Martinez Monsivais, File)

Secret tape may not add to legal jeopardy for Trump or Cohen

July 26, 2018 - 2:54 pm
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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 blocked 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 payment the men are discussing was campaign-related and intended to influence the election, in which case it would likely be counted as a contribution, or whether it was merely meant to shield the married Trump from an embarrassing revelation harmful to his personal life. Also important is whether the payment to McDougal from the Enquirer's parent company, American Media Inc., was meant as a backdoor campaign contribution or was a legitimate media company expense.

"It's a piece of evidence. It's not a smoking gun," said Rick Hasen, a campaign finance law expert at the University of California, Irvine. "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 that 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 responded by circulating 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 barring corporations from making campaign contributions. But there's an exemption for media companies engaged in legitimate media functions, which AMI could invoke by saying it was acting as a news organization and not a campaign supporter.

A key question will be whether the arrangements would have taken place even if Trump weren't a candidate. But election references in the recording, 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 campaign was a central focus.

"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, a campaign finance law expert and former general counsel to the National Republican Senatorial Committee.

Daniel Petalas, former general counsel to the Federal Election Commission, said the recording could be valuable to prosecutors to the extent it reveals Trump's and Cohen's state of mind.

A former Justice Department prosecutor, Petalas said it was notable that Trump seemed concerned that divorce papers could soon 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 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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