Michael Cohen's playmate payoff tape with Trump puts both men in legal crosshairs

Harry Litman | Guest Columnist

Show Caption Hide Caption Karen McDougal tells CNN Trump tried to pay her after sex A former Playboy model apologized to First Lady Melania Trump for a 10-month affair she claims she had with President Donald Trump that started with him offering her money after the first time they had sex.

The immediate focus since the release of the audio tape of Michael Cohen talking to President Donald Trump has been on whether the president 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 really of marginal significance and is swamped by several larger factual points that the tape establishes, and several others that it suggests.

First, the anchoring point for legal purposes is that 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 in 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 the objective of their agreement, and is it criminal? Again, from the standpoint of a prosecutor, this will ultimately be a question for a jury. And it is critical to remember that the prosecutors in the Southern District of New York have a mountain of evidence in addition to the tape, on top of which will likely be Cohen’s own testimony. But the evidence of the tape alone is that the object of the conspiracy was to conceal the payout to McDougal in order to further Trump’s electoral prospects.

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That seems the clear import of several aspects of the tape. The entire conversation is about the campaign, beginning with Cohen’s congratulations to the president 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. And 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 probative 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 factual issue raised by the tape is if the men are acting in concert, and if the objective is to suppress the information in order to aid Trump’s electoral prospects, what legal liability might that entail. Again, it’s important not to judge the case solely on the tape, but that point cuts against Trump and Cohen, because we can reasonably expect the prosecutors to have a wealth of additional information.

There are at least three kinds of charges that the prosecutors would want to pursue. They all concern a kind of fraud, and they can be categorized according to whom the men's action was designed to fool.

First is the Federal Election Commission. It would have been awkward to say the least to list a $150,000 in-kind contribution from the National Enquirer to buy the silence of Karen McDougal on a campaign-disclosure form, and the Trump campaign did not. That means that they may very likely have broken campaign-finance laws that require full disclosure of contributions.

A willful violation of that sort is criminal, though the FEC has not been robust in enforcing the criminal provisions of the law.

The second sucker was McDougal herself, whom the men and others manipulated shamelessly to keep her story bottled up and who could have been the victim of wire fraud. In particular, 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 with the intention of performing a “catch and kill,” preventing the story from ever seeing the light of day. (It is the rights to that story that Trump and Cohen are discussing buying from AMI.)

The manipulation might have included supplying McDougal with an attorney — the same attorney he funneled to Stormy Daniels — who was at least somewhat in Cohen’s pocket and failed to act in the porn star's best interest. It’s a safe bet that the attorney, Keith Davidson, will be cooperating with the prosecutors.

Finally, the sort of arrangement Trump and Cohen were pursuing requires incorporation, banks and other administrative inconveniences. It is at least a possibility worth pursuing that in setting up and using the corporation — which may have been designed for multiple cleanup operations — Cohen would have misled bankers about the purpose of the funds. So bank fraud would be a third possibility that prosecutors could look into.

That is not to say an indictment of Cohen — which will almost certainly be forthcoming unless he decides to cooperate — would also name Trump as an unindicted co-conspirator. It could, but that decision would need to be made at the highest reaches of the Department of Justice and would raise weighty questions of constitutional law.

Even so, it’s important to remember that the tape’s political implications and legal implications are not one and the same. Prosecutors don’t care about the political mud wrestling between the two camps and will mainly overlook (except as it provides evidence of guilty knowledge) the outlandish spinning that Trump spokesman Rudy Giuliani in particular is attempting in the public arena.

The prosecutors 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.

Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches the Supreme Court as a Political Institution at UCLA Law School. He clerked for Justice Anthony M. Kennedy during the 1988-89 Supreme Court term and worked on Supreme Court and other judicial nominations at the Justice Department.