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Trump discussing a hush agreement related to a Playboy model raises a new set of legal questions

From left, Michael Cohen, President Trump, David Pecker. (Eduardo Munoz Alvarez/Getty Images; Andrew Harnik/AP; Joe Raedle/Getty Images)

It’s probably easiest to start with a timeline.

In August 2016, former Playboy model Karen McDougal reached a deal with American Media Inc., the publishers of the National Enquirer and other magazines. As part of that deal, Ronan Farrow reported for the New Yorker, she would get $150,000 and several opportunities to write for AMI publications. In exchange, AMI got the exclusive rights to stories about any relationship, physical or romantic, with any “then-married man.”

The specific “then-married man” with whom McDougal had a relationship was a very good friend of AMI boss David Pecker: then-presidential candidate Donald Trump.

The deal was the result of months of conversations with AMI, brokered on McDougal’s end by her attorney, Keith Davidson. A few months later, Davidson negotiated another deal to bury another story about a relationship with Trump, that of adult film actress Stormy Daniels. For the Daniels agreement, Davidson worked with Trump’s longtime personal attorney Michael Cohen.

At some point — it’s not clear when — Davidson and Cohen also discussed McDougal‘s settlement, according to a conversation she had with CNN’s Anderson Cooper in March.

“Do you think Donald Trump would have been aware of this — of this deal?” Cooper asked. “That [AMI was] doing him — that they were allegedly doing him this favor?”

“I wouldn’t know, but based on what I’m learning as we’re all learning together as we read, and one of the big complaints with why I think my contract is illegal is because his attorney was talking to my attorney,” McDougal replied.

“You’re saying Donald Trump’s personal attorney, Michael Cohen, was talking to Keith Davidson, your attorney,” Cooper clarified.

“Correct,” she said, “without me even knowing, without my knowledge.”

“Theoretically, there would be no reason for Michael Cohen to be having communication with your attorney because this was a deal between Keith Davidson, you, and AMI,” Cooper said.

“Right,” McDougal replied. “So, why was he involved in my deal? And why wasn’t I told that he was involved in my deal?”

On Friday, the New York Times first reported the existence of an audio recording between Cohen and Trump discussing that AMI agreement. That conversation apparently happened in late September, after the Aug. 5, 2016, signing of the agreement and, The Post reported, focused on potentially buying the rights to the story from the publisher.

Former New York mayor Rudolph W. Giuliani, who now works on Trump’s legal team, said that no payment from Trump was made, but that the conversation included ensuring that any payment to AMI be done with a check so that it could be documented.

All of this is interesting for several reasons. The first is simply that the existence of a conversation between Trump and Cohen about McDougal strengthens her assertion that she and the president had an affair more than a decade ago. The second is that the discussion itself, apparently about trying to keep private that relationship, suggests that Trump was keenly aware of the political damage such a revelation might do, even before the slew of allegations that emerged after The Post reported on the existence of the “Access Hollywood” tape.

The least titillating but perhaps most important reason is the third: whether campaign finance laws might have been broken.

We’ve been over this before, so a quick summary is in order. Cohen couldn’t simply spend money to keep someone quiet out of concern that their story would affect the election. Given Cohen’s relationship with the candidate and his role as an agent of the campaign (attending rallies, speaking on its behalf on television, etc.), the money he paid to Daniels would have needed to be reported if it were meant to influence the election.

We know or believe that:

  • AMI paid McDougal for the rights to her story in August 2016.
  • Cohen and Davidson likely spoke at some point.
  • Trump and Cohen discussed buying the rights from AMI in September.
  • They ended up not doing so.

There are three important questions for which we don’t have answers.

  1. Why did AMI make the deal with McDougal?
  2. How did Cohen and Trump learn about it?
  3. Why didn’t they then buy the rights themselves?

It’s possible, as we’ve explored before, that AMI and Trump’s friend Pecker bought the rights specifically to aid the campaign by not letting the story get out before the election. That’s a benefit to the Trump campaign — but not in the legal sense. Pecker could spend that money as he desired. With a caveat: If Trump or Cohen had spoken with AMI before the company bought the rights to McDougal’s story, the legal line would likely have been crossed.

To answer the second question, it’s also possible that Trump and Cohen never had a conversation with AMI about the possible purchase. Somehow they learned that AMI had made this deal, clearly, but it could have been through Cohen’s conversations with Davidson, mentioned in that CNN interview by McDougal. Maybe they became aware of the deal and discussed buying the rights for themselves.

But that brings us to the third question, the most important one. Why didn’t they then buy the rights?

It seems clear that Trump and Cohen were hoping to keep negative stories from coming to light in the months before the election. They may have been worried that AMI might decide at some point before the election that McDougal’s story could sell a lot of magazines. AMI never did that, though, even though Trump never bought the rights that would have kept them from doing so.

So did AMI or Pecker assure Trump they didn’t intend to run the story?

If so, that’s likely a violation of law, former Federal Election Commission lead counsel Lawrence Noble said when we spoke by phone on Friday. The $150,000 spent by AMI to buy the story from McDougal would likely be considered an in-kind contribution to the Trump campaign that wasn’t reported.

“If one of the options was buying it from AMI and AMI convinced them they didn’t need to buy it, that bolsters the argument that it’s a campaign contribution because that would be a discussion with AMI about it,” Noble said. There are ways in which media outlets can engage in political activity, he said, but this likely wouldn’t count. A conversation in which AMI assured Cohen and Trump that the story would be buried “would be strong evidence that AMI made a campaign contribution,” he said. “That this wasn’t a journalistic decision, that this was in coordination with the campaign.”

That holds even if AMI paid McDougal without Trump or Cohen’s knowledge, and it holds if Trump and Cohen convinced AMI to sit on the story.

Giuliani called the taped conversation “exculpatory” in his conversation with the Times. Perhaps in the sense that it contributes to Trump’s argument that he didn’t pay off McDougal or have a hand in the initial outreach from AMI to McDougal.

But it’s not at all exculpatory for AMI — at least until we learn more about the seemingly numerous pre-Election Day conversations about paying money to women who claim to have had affairs with Donald Trump.