Dear Reader,

During my career as a prosecutor, anytime I worked a case involving a large mafia takedown, defense lawyers would sidle up throughout arraignment day and ask this one key question: “So, is this a tape case?” There’s no insider lingo involved here; tape meant tape as in, “Do you have my guy on tape?” When I’d answer nope, I’d see eyebrows raise in a “Maybe there’s hope for my guy yet” manner. But when I answered yes, I’d typically get a quick nod communicating that the defense lawyer understood it would be all about negotiating a guilty plea from that point on. 

Indeed, tapes are the prosecutor’s best friend – usually. But when Michael Cohen secretly recorded a phone call with his own client, Donald Trump, in September 2016, he created a piece of evidence that could become a key part of Trump’s defense in his ongoing criminal trial in Manhattan.

It’s not all bad news for prosecutors, of course. The tape confirms an important pillar of the district attorney’s case: Trump plainly knew about and approved of hush money payments to women with whom he had allegedly had sexual dalliances, years before. But that was never seriously in dispute. Trump’s lawyer conceded as much during his opening statement. 

Remember that the crime here is not payment of hush money – it’s falsification of business records around those payments, to evade campaign finance laws. The crime, in other words, lies in the accounting behind the hush money payments. And Cohen’s tape casts doubt on a central element that the prosecution must prove to the jury, beyond a reasonable doubt: that Trump was involved in the fraudulent scheme to structure reimbursements to Cohen, to make the hush money payments look like legal expenses.  

Let’s set the scene for Cohen’s recording of Trump. It’s September 2016, two months before the election. Cohen decides – for reasons that remain unclear but surely will be explored in depth when he testifies – to record a phone call with Trump, without Trump’s knowledge. While it wasn’t illegal for Cohen to record his client, it was bizarre and brazenly unethical. Ask any defense lawyer whether he’s ever secretly recorded a client, and watch him respond like you’ve just asked whether he ever ate a banana with the peel on. He’ll be more confused than offended. Why would anyone do that? Perhaps tellingly, Cohen never voluntarily came forward with the recording. Rather, the FBI seized it from his office when they executed a search warrant in 2018.  

Any plausible explanation here will hurt Cohen’s credibility as a witness. Did Cohen secretly record other clients, too? Did he tape conversations with Trump beyond this one? If so, did he preserve or delete those recordings? Any claim by Cohen that he was playing good cop and trying to catch Trump in the act won’t fly. Cohen stayed by Trump’s side and continued to do his bidding for nearly another two years, before he flipped in 2018, after the FBI search.

The September 2016 call begins with Trump talking to somebody offline about unrelated business. When Trump turns his attention to the call, Cohen opens with “Great poll, by the way.” It’s jarring now, given Cohen’s all-consuming public hatred for Trump, to recall a time when Cohen was an eager sycophant, yelping giddily about any snippet of good news for the bossman. 

Cohen quickly raises the then-ongoing effort to pay off former Playboy model Karen McDougal, to “catch and kill” her story – to buy the rights and then bury it, that is. (The McDougal payoff is not charged in the indictment, but the judge has ruled that the DA can introduce it as evidence to support the charged crimes, which center on a separate but similar scheme to pay off Stormy Daniels.)

Cohen explains to Trump that “I need to open up a company for the transfer of all of that info regarding our friend, David [Pecker], you know, so that — I’m going to do that right away… And I’ve spoken to Allen Weisselberg about how to set the whole thing up with…” Pecker was the DA’s first witness at trial; he was the Chair of AMI, the company that published the National Enquirer, and he worked closely with Trump and Cohen to execute the “catch and kill” strategy. Weisselberg is the longtime Trump Organization Chief Financial Officer, currently behind bars for committing perjury in the Trump Organization civil fraud trial earlier this year. 

Read Cohen’s words again and ask: who exactly set up the accounting behind the hush money payments? Remember – the crime isn’t the payment, it’s the structuring of those payments to make them look like legal expenses. On the recording, Cohen (the lawyer) explains to Trump (the client) that he has spoken with Weisselberg (the CFO) “about how to set the whole thing up.” Trump is characteristically disinterested in the nuances. He cuts Cohen off with a bottom-line question: “So what do we got to pay for this? One-fifty?” Trump obviously knows about and agrees to make the payments. But, importantly, Cohen never actually explains to Trump how the payments will be structured. All Cohen says is that he and Weisselberg will “set the whole thing up.”

Moments later, after some irrelevant crosstalk, this exchange happens:

COHEN: So, I’m all over that. And, 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.

Once again, the dynamic is apparent. Trump is fine with paying McDougal to ensure her silence. But Cohen is the one handling the mechanics and internal accounting behind those payments. If anything, Trump seems clueless. It’s a bit unclear whether Trump suggests they pay by cash or by check. Either way, Cohen has something more complicated in mind – “the financing,” as he puts it. And, when Trump suggests a straightforward one-time payment (“pay with cash,” likely meaning pay up front without financing, as a former Trump lawyer has reasonably explained), Cohen blows him off in favor of something more complicated: “No, no, no, no, no. I got it.” 

This, folks, is a problem for prosecutors. Sure, they’ll advocate for a more favorable interpretation of the call. They’ll argue that the tape shows Trump knew about the McDougal hush money payments (which he did) and that he spoke with Cohen about how to make those payments. But the tape makes plain that when it came to how those payments would be structured, transmitted, and internally logged – the actual crime charged, with respect to the Daniels payments – Cohen and Weisselberg led the way, with Trump dimly apprised, if at all.  

The DA’s case has come in smoothly, so far, and it remains more likely than not that the jury will find Trump guilty. But I assure you: prosecutors wish Cohen had never hit “record” on that call with his own client. Even if Cohen’s secret recording is a stalemate of sorts – even if it cuts both ways, helps and hurts both sides in some measure – that’s a problem for prosecutors. They’re the ones who have to prove their case, beyond a reasonable doubt. As we prosecutors would sometimes say: if you’re explaining, you’re losing. 

Stay Informed,

Elie