Alex Brandon/AP Photo law and order Michael Cohen’s Tape Is Trouble for Trump Take it from an ex-prosecutor: Prosecutors love recordings. Unfortunately for the president, so do juries.

Gene Rossi is a white-collar defense attorney with the firm of Carlton Fields and a former Justice Department prosecutor (1989-2016).

In “My Fair Lady,” the 1964 musical, Eliza Doolittle — an attractive denizen of a tough working-class neighborhood in London — is utterly frustrated by the condescending pressure of phonetics Professor Henry Higgins, who takes upon himself the herculean task of teaching her to speak in perfectly proper British form in order to enhance her high-society job prospects. She famously laments: “Words! Words! Words! I’m so sick of words!”

As a former federal prosecutor with close to three decades of experience, including 110 trials, I can safely write that words do profoundly matter in a criminal case. And tapes can be potentially explosive. The tone. The bravado. The pause. The context. The silence. The hidden meaning. The wink-and-a-nod that tapes bring to light between alleged conspirators. Defendants, whose voices were on recordings in quite a few of my trials, always had one thing in common: They hated tapes. I loved them! And notwithstanding Eliza’s feelings, the words were usually priceless.


The American people and the world have been introduced to the first of possibly many tapes of Michael Cohen and President Donald Trump. Stay tuned. And get out the popcorn. No matter how much Lanny Davis and Rudy Giuliani, who are both exceptional lawyers under any standard, very publicly try to spin whether the tapes help or hurt their respective clients, there are several aspects of tapes that always weigh heavily in favor of a prosecutor.

Before I get to those favorable aspects, let’s summarize some of what has been reported in the media. We have an audio recording of a private conversation between Cohen and the president. The tape was made in September 2016 in the heat of an intense campaign between Trump and his Democratic opponent, Hillary Clinton. On the relatively short tape, which probably will have to be further analyzed for who said exactly what and when, there is a discussion of a possible payment (cash or check) to “David,” who presumably is David Pecker of American Media, Inc., which owns the National Enquirer. AMI reportedly paid $150,000 for the rights to former Playboy model Karen McDougal’s story of her affair with the president in 2006-07. In my opening or closing to the jury, I would refer to a piece of evidence such as this as the “David Tape.”

However, I must stress that the David Tape alone is not enough by any means for criminal charges. As I taught to hundreds of young federal prosecutors, a trial is mainly a prosecutor’s presentation of a “Final Mosaic”: the theme and synopsis of the crime for the jury. A Mosaic can be comprised of countless evidentiary tiles — and the David Tape could be one of several explosively significant tiles in the Mosaic, if charges are ever brought. We shall see.

Why could the David Tape be important in this or any other matter? My first point (albeit subtle) cannot be overstated: Their voices are on a tape. Period. If there is a trial, a defendant has a Fifth Amendment right to remain silent and not testify. A tape with the defendant’s voice thereon is a beautiful tool, a legal way for the prosecutor to effectively call the defendant as a witness.

In all my years as a prosecutor, I never once met a defense attorney who wanted the jury to hear their client’s voice on a tape. Even if the defendant is saying exculpatory things (oftentimes it is obviously self-serving, such as “I don’t know what you are talking about!” or “I never sold drugs!” “I did not know my pain patients were dealers”), the tape is an important window into the defendant’s soul. The jury may hate the tone, the insincerity, the way words are spoken, and the cadence of the sentences. I sometimes embraced the playing of tapes that had self-serving statements because letting the jury hear the words coming out of the mouth of the defendant far outweighed the self-serving statements of the speaker.

Plus, when strong evidence shows that the defendant is not telling the truth on tape, I would jump at playing a recording. For example, in the Eastern District Court of Virginia, I twice tried a prominent McLean pain doctor (William Hurwitz), for whom we had hours of tapes from his visits with patients, whom he knew were drug dealers. I played many a tape with his self-serving “I know nothing” jibberish because the documents in the file (e.g., failed drug tests and a prescription to one patient of 1,200 pain pills daily) and the testimony of other witnesses clearly showed that the defendant, who knew he was a federal target, was lying to his patients on those tapes. His hideous laugh on the tapes was also memorable. The jury found him guilty each time for essentially running a “pill mill”—and the tapes were a critical piece of the Mosaic.

A second aspect of the David Tape that could possibly be helpful to prosecutors is that just weeks before the 2016 election, the future president is heard talking about a hush payment to quash a story about his monthslong affair with a Playboy paramour. That ain’t good under any scenario—even for Donald Trump.

Third, this tape could corroborate any possible allegation that the president and Cohen conspired to conceal an in-kind contribution to the campaign from AMI. And if Cohen cooperates, he would be what I would call a fabulous “prologue, real time, and epilogue” witness: He could describe events leading up to the day of the tape; explain the nuance and context of parts of the tape that seem ambiguous (“David,” “cash,” “check” and “it’s all the stuff”); and events taken after the taped conversation. All invaluable help to a prosecutor in any kind of case.

Fourth, there is no doubt that investigators will get the best audio experts to decipher who said what and when on the tape. The evidentiary analysis will be highly captivating and illuminating to a jury.

Fifth and last, Cohen’s words (“I’ve spoken to Allen Weisselberg about how to set the whole thing up”) and the president’s calm reaction (“So, what do we got to pay for this? One-fifty?”) on tape brings us new leads, and a possible subject or witness: the longtime financial wizard for the president and even for his late father Fred Trump: Trump Organization CFO Weisselberg. Imagine what that guy knows; he could be a wealth of information and corroborate Cohen’s description of the coincidental amount of “150,” the “thing” and the “this.” No one wants investigators to be talking to their decadeslong financial planner, who may know where the monetary bodies are buried. This last point is clearly not good for the president, as it may open up the possibility that Trump’s still-unpublished tax returns (or other financial records) could possibly be fair game for analysis and review by agents. In the end, Giuliani is dead wrong that the David Tape is “exculpatory” as it relates to the president; for prosecutors, it’s a potential mother lode.

I would also add that the fracas between the Cohen and Trump camps is a classic PR food fight. Any prosecutor hates and loathes public playground antics among witnesses, subjects and targets. If a participant (e.g., Cohen) were to cooperate with the prosecutors, then he would possibly have credibility problems from the high-profile kerfuffles. No one wins. The camps seem to be filming scenes for The Apprentice, when they would better serve their clients if they focused on the serious legal battle in the Southern District court of New York.

A federal court of law is not a movie set for Animal House. As we learned in Watergate, the American people are never sick of tapes. And unlike Eliza, juries are never sick of words.

