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Opinion On new Cohen tape, Trump seemed to insist on ‘cash’ payment. Here’s what that might mean.

CNN aired a tape of President Trump and his longtime lawyer Michael Cohen discussing a payment to a former Playboy model. Here's what happened. (Video: Amber Ferguson/The Washington Post)
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President Trump’s former lawyer, Michael Cohen, has released audio of a call between the two men, in which Trump clearly appears to know about the need to buy the rights to a story from a woman who alleged an affair with him. As many have noted, the audio appears to demonstrate that Trump knew in September of 2016, when the call took place, that this hush money would need to be paid.

But it also raises another important question beyond that one: Did Trump actively try to conceal that payment from future discovery at the time, as well?

This morning, Trump issued a bizarre tweet about the audio, wondering aloud: “What kind of a lawyer would tape a client?” (The kind of lawyer who was willing to represent you, Mr. President.) Trump also asked why the audio seems to abruptly cut off, which is not an unfair question but also seemed designed to distract from what is obvious about the recording, which is that Trump does not sound surprised in the least when Cohen raises the need to pay for the story of former Playboy playmate Karen McDougal, who had claimed a 10-month affair with Trump.

From the transcript:

COHEN: Um, I need to open up a company for the transfer of all of that info regarding our friend, David, you know, so that — I’m going to do that right away. I’ve actually come up and I’ve spoken —
TRUMP: Give it to me and get me a [UNINTELLIGIBLE].
COHEN: And, I’ve spoken to Allen Weisselberg about how to set the whole thing up with …
TRUMP: So, what do we got to pay for this? One-fifty?

This appears to indicate that Trump knew about the need to pay $150,000 (note that he cited the figure unprompted, suggesting previous knowledge of it) to David Pecker, the chief executive of American Media, Inc., which had paid that sum to McDougal for the story. The discussion that follows indicates that Trump worried what might become of the story if something happened to Pecker, suggesting he wanted to own the story as protection.

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Then later comes this:

COHEN: I spoke to Allen about it, when it comes time for the financing, which will be —
TRUMP: Wait a sec, what financing?
COHEN: Well, I’ll have to pay him something.
TRUMP: [UNINTELLIGIBLE] pay with cash …
COHEN: No, no, no, no, no. I got it.
TRUMP: … check.

Trump lawyer Rudolph W. Giuliani is claiming that Trump actually said “don’t pay with cash.” But if so, it’s unclear why Cohen followed that with a “No, no, no, no, no.” (It’s possible Cohen meant, “No, I would never do that.”) Regardless, this question is important for a reason: If Trump did want a cash payment, that might have been to conceal evidence — at the time — of what may have been a violation of campaign finance law. Other aspects of the call show Trump preoccupied with the election, and as Philip Bump points out, this suggests Cohen was, for all practical purposes, making this payment as an “agent” of Trump’s campaign, making this a potential undisclosed campaign expenditure, which could be illegal.

Michael Cohen’s secret tape raises five crucial questions

Former federal prosecutor Barbara McQuade told me that if this is the case, the question of whether Trump wanted the payment made in cash becomes more relevant — because it goes to the heart of Trump’s intentions.

“If this expenditure was made on behalf of the campaign and it was not disclosed, and it was done willfully, that’s a crime,” McQuade said. If Trump wanted that done in cash, McQuade continued, “it suggests an effort to conceal the payment. If you’re hiding things, prosecutors often see that as some indication that you believe you were guilty, that you knew what you were doing was illegal. Taking steps to cover it up does tend to establish that willfulness. That could be incriminating.”

McQuade added that in such a scenario, prosecutors could conceivably see Trump as a “co-conspirator” in a “conspiracy to violate campaign finance laws,” though McQuade added that it’s unlikely that prosecutors would bring such charges against a sitting president, even by naming him as an “unindicted co-conspirator.” Still, McQuade added that if more evidence emerged of additional instances of such payments, “the case may become more significant.”

To be clear, it’s perfectly plausible that this will turn out to be nothing. But as Timothy L. O’Brien points out, Cohen’s suggestion during the call that he briefed Allen Weisselberg, the chief financial officer of the Trump Organization, on the arrangement is potentially important as well:

Weisselberg isn’t a bit player in Trumplandia and his emergence on the Cohen-Trump recording — as someone possibly facilitating a scheme apparently meant to disguise a payoff — should worry the president. Weisselberg has detailed information about the Trump Organization’s operations, business deals and finances. If he winds up in investigators’ crosshairs for secreting payoffs, he could potentially provide much more damaging information to prosecutors than Cohen ever could about the president’s dealmaking.

One thing this story has shown us, again and again, is that we simply have no idea where it will lead. The focus on Cohen has since produced revelations that he ran a kind of shakedown operation designed to sell access to Trump, and we still don’t know much about how that arrangement touched Trump himself. The newly released audio shines a light into yet another corner of the netherworld of how Trump conducted business, and if prosecutors now focus on Weisselberg, that could produce still more revelations. And by the way, on ABC this morning, Cohen’s lawyer Lanny Davis said there are more tapes of Cohen and Trump. Perhaps they will amount to nothing. But after all we’ve seen, does anyone want to bet good money on that?

Without the Russians, Trump wouldn’t have won

Update: I should have been clearer that the reporting indicates the payment was ultimately never made. This would mean that there may not have been a substantive campaign finance violation, McQuade tells me. But McQuade adds that the larger point about Trump’s intent stands. “There could still be a conspiracy” to commit such a violation, McQuade notes, “and this recording still could be used as evidence of intent in the larger context of other evidence.”

Update II: I added a bit more of the transcript to the post, for fuller context.


* AS TRUMP CELEBRATES ON NORTH KOREA, AIDES WORRY: Trump is pointing to North Korea’s dismantling of a nuclear test stand as victory, but the New York Times reports that his advisers aren’t so sure about Kim Jong Un’s intentions:

Inside the White House, Mr. Trump’s aides wonder whether they are falling into a familiar pattern of endless negotiations with the North, which in the past has destroyed a few symbolic facilities but kept expanding its arsenal. … At the same time, the officials warned, Mr. Trump’s premature declaration on Twitter that “there is no longer a Nuclear Threat from North Korea” … took much of the pressure off Mr. Kim, and appears to be helping him evade international sanctions, with the help of China and Russia.

Once you understand that Trump doesn’t care what actually happens in the real world, as long as he can find something to claim victory about on Twitter, the “strategy” makes a lot more sense.

* TRUMPIST WINS IN GEORGIA: The Trump-endorsed Brian Kemp won the Georgia GOP gubernatorial primary and will now face Democrat Stacey Abrams, who hopes to become the nation’s first female African American governor. The Post comments:

The victory by Kemp instantly turned the general election race into a sharp contrast capturing the cultural, racial and political divides that have gripped the country in the Trump era. … Republicans were left to ponder whether Trump was strengthening the party’s hand ahead of the November election or weakening it. .. in a state where the president only narrowly eclipsed the 50 percent mark in 2016. The president’s move put him at odds with many Republican elected officials.

A victory for Abrams would be a tremendous repudiation of Trumpism in a diversifying state. As The Post notes, Kemp ran an ad vowing to “round up criminal illegals and take them home myself.”

* WHITE HOUSE STOPS REPORTING CALLS WITH FOREIGN LEADERS: CNN scoops that the White House has suspended the practice of reporting and sharing details of presidential calls with foreign leaders, a previously bipartisan practice:

Official descriptions of the President’s calls with foreign leaders … offer administrations the chance to characterize in their own terms the diplomacy conducted at the highest levels between countries. … The White House has not published a readout of a call between Trump and a world leader since mid-June.

The White House is not explaining why this change was made, but here’s a possible reason: Word of these calls might prompt more reporting on them, which in the past has embarrassed Trump.

* SUBURBAN WOMEN TURN ON GOP: A new NPR/PBS News Hour/Marist poll finds that Trump’s approval is stuck at 39 percent, while Democrats lead in the generic ballot matchup by 47 to 40 percent. And:

Fifty-seven percent of suburban women also strongly disapprove of Trump, and Democrats have a 28-point edge in which party suburban women would vote for in November. This an ominous sign for Republicans given that these will be critical voters in many House battlefields.

As I’ve argued, we have not yet seen the depths of alienation from Trump that female voters may yet experience. Let’s hope this holds.

* REPUBLICANS TURN ON THE FBI: Also from the new NPR/PBS/Marist poll:

Republicans view the FBI, which Trump has repeatedly demonized, differently than the public at large does. Almost 6 in 10 people say that the FBI is just trying to do its job, while one-third of Americans say it is biased against the Trump administration. Fifty-five percent of Republicans think the FBI is biased against the president.

However, in a bright spot, 63 percent of Republicans agree with the intelligence community’s assessment that Russia interfered in the 2016 election.

* SOME REPUBLICANS RELIEVED BY FARMER BAILOUT: Many Republicans are loudly condemning the Trump administration’s $12 billion bailout of farmers hurt by Trump’s trade war, but the Washington Examiner reports that some Republicans “quietly exhaled”:

In major agriculture states, some of which are also key 2018 battlegrounds, free-trade Republicans reluctantly endorsed the president’s intervention. [Some] Republicans, when pressed, declined to categorically reject the White House rescue package, even as they protested the Trump tariffs.

Which confirms, of course, that Trump’s trade war is shaping up as a political disaster for Republicans.

* TRUMP RAGES OVER CNN, AND FOX IS THE RULE: The New York Times reports that on Air Force One, Melania Trump’s TV was tuned to CNN, prompting Trump to erupt, according to an email exchange between various White House offices:

He raged at his staff for violating a rule that the White House entourage should begin each trip tuned to Fox … according to an email obtained by The New York Times. The email … also called for the ordering of two additional televisions to support Beam, a TiVo-like streaming device, to make sure the president and first lady could both watch TV in their separate hotel rooms when they travel. At the end of the email chain, officials confirmed that tuning the TVs to Fox would be standard operating procedure going forward.

No longer will stray bits of real news reporting be permitted to enter the Fox-fueled presidential bubble.