So whose case is more plausible? Let's parse it.
First, here's what we can make out from the tape:
COHEN: So, I’m all over that. And, I spoke to [Trump Organization CFO] Allen [Weisselberg] 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.[Tape cuts off abruptly]
Now we'll evaluate the spin from each side, starting with Trump:
The Trump team spin
When news of the tape's existence broke Friday, Trump lawyer Rudolph W. Giuliani cheered it as “exculpatory.” He said it would show that Trump said Cohen shouldn't pay in cash — suggesting that Trump wanted a paper trail because there was nothing nefarious about it.
Giuliani reiterated that case late Tuesday. “I agree with you the tape is a little bit hard to hear,” he said. “But I assure you that we listened to it numerous, numerous times. And the transcript makes it quite clear in the end that President Trump says, 'Don't pay with cash.' ”
Giuliani also expanded upon that defense, arguing that it's not even clear Trump knew the details of the McDougal situation: “That’s open to interpretation, and we can have a fight about that. . . . To me it sounds like Cohen is explaining something to [Trump] that he doesn’t understand.”
You can bet both sides are trying to enhance the recording's audio as best they can — if they haven't already — to figure out whether Trump said “don't.” But it's just not clear yet.
Setting that aside, here's what we can say:
The first thing is that Trump and Cohen are talking in very vague terms about the entire thing — as if they don't want to say people's names or describe the transaction out loud. That suggests, perhaps, the whole thing isn't on the up-and-up. Now, that could simply be because Trump doesn't like talking about paying women for their stories of his alleged affairs. But it could also be because he knows the whole thing isn't exactly kosher.
One key moment on that front would seem to be when Cohen says he'll need to “open up a company for the transfer of all of that info regarding our friend, David” — apparently referring to David Pecker, the head of the National Enquirer's parent company, American Media Inc., which had the rights to McDougal's story. It sounds as if that company would be set up to facilitate the payment, which is exactly what Cohen did with the Stormy Daniels payment. In that case, it was apparently intended to hide the transaction. (The Wall Street Journal now reports Cohen did set up the company for the potential McDougal payment.)
Why set up a company if this was going to be handled aboveboard? If Trump truly didn't feel anything needed to be hidden, why open up a company rather than just make the payment normally? This is the biggest hole in Giuliani's spin.
As for his argument that it's not clear Trump even knows about the McDougal situation? That's a little difficult to believe, too. Trump is not at all surprised when Cohen broaches the topic or when Cohen mentions “David.” Trump is also the first to reference “one fifty,” which was how much AMI paid McDougal for the rights to her story, in thousands of dollars, the month before. Perhaps Giuliani is saying Trump knew only about the amount and that something was being purchased from Pecker — and not that it was McDougal's story, specifically — but he would have had to be deliberately keeping himself in the dark about the details.
Perhaps the most compelling explanation here comes not from Giuliani, but from Alan Futerfas, an attorney for the Trump Organization. He said Trump's allusion to “cash” was meant as a counterpoint to Cohen's reference to “financing.”
“The notion that they were discussing using a bag of cash or green currency is ridiculous,” Futerfas said.
Trump does seem taken aback when Cohen brings up “financing,” which could be understood as proposing a loan with installments and an interest rate. Even if Trump said, “Pay with cash” rather than “Don't pay with cash,” that would seem to be a logical explanation.
The Cohen team spin
Appearing on CNN shortly after the tape first aired, Cohen lawyer Lanny Davis said Trump's reference to cash smacks of criminal activity. “The only people who use cash are drug dealers and mobsters,” Davis said.
Davis added: “Ladies and gentlemen, if you voted for Donald Trump, listen to the tape and ask yourself: Is Donald Trump lying when he said he didn't use the word 'cash' and accuses Michael Cohen of using the word 'cash'? Cohen has been disparaged. Cohen has been insulted and called all sorts of things by people around Donald Trump.”
This seems to be an attempt at misdirection from Davis. Trump didn't specifically deny saying “cash,” as Davis maintains. Giuliani argued that Trump was arguing for paying via check rather than cash, but there was never a denial that Trump uttered the word “cash.” And for the reasons mentioned above, Giuliani's case is at least plausible.
Why would Davis require such a straw man? Perhaps because the tape doesn't clearly feature Trump pushing the idea of paying in cash, he needs to make the case that the Trump team lied about it. And there is some grist for that mill, given that Trump campaign spokeswoman Hope Hicks previously flatly denied Trump had any knowledge of the McDougal/Enquirer deal.
Regardless of how strained these arguments are, though, remember this: If there was something nefarious here, you can bet Cohen would know more about it or would at least testify to that fact if he flipped on Trump. Whether Trump wanted to pay in cash would seem to be a piece of the puzzle, but hardly the whole puzzle itself. Cohen seems to be suggesting he's got the goods; we'll see.