Michael Cohen Recorded Conversation With Trump Regarding Payoff To Playboy Model

Donald Trump's longtime attorney and "fixer" Michael Cohen apparently recorded a conversation where the two men discussed paying off a Playboy model who claims she had an affair with him.

The New York Times is reporting that Michael Cohen, Donald Trump’s longtime attorney and “fixer” who is the subject of an ongoing investigation by Federal prosecutors in New York City, recorded a conversation between himself and Donald Trump in the month prior to the 2016 election discussing paying off Karen McDougal, the Playboy model who says she had an affair with Trump while his wife Melania was pregnant with their son Barron:

WASHINGTON — President Trump’s longtime lawyer, Michael D. Cohen, secretly recorded a conversation with Mr. Trump two months before the presidential election in which they discussed payments to a former Playboy model who said she had an affair with Mr. Trump, according to lawyers and others familiar with the recording.

The F.B.I. seized the recording this year during a raid on Mr. Cohen’s office. The Justice Department is investigating Mr. Cohen’s involvement in paying women to tamp down embarrassing news stories about Mr. Trump ahead of the 2016 election. Prosecutors want to know whether that violated federal campaign finance laws, and any conversation with Mr. Trump about those payments would be of keen interest to them.

The recording’s existence further draws Mr. Trump into questions about tactics he and his associates used to keep aspects of his personal and business life a secret. And it highlights the potential legal and political danger that Mr. Cohen represents to Mr. Trump. Once the keeper of many of Mr. Trump’s secrets, Mr. Cohen is now seen as increasingly willing to consider cooperating with prosecutors.

The former model, Karen McDougal, says she began a nearly yearlong affair with Mr. Trump in 2006, shortly after Mr. Trump’s wife, Melania, gave birth to their son Barron. Ms. McDougal sold her story for $150,000 to The National Enquirer, which was supportive of Mr. Trump, during the final months of the presidential campaign, but the tabloid sat on the story, which kept it from becoming public. The practice, known as “catch and kill,” effectively silenced Ms. McDougal for the remainder of the campaign.

Rudolph W. Giuliani, Mr. Trump’s personal lawyer, confirmed in a telephone conversation on Friday that Mr. Trump had discussed payments to Ms. McDougal with Mr. Cohen on the tape. He said the recording was less than two minutes long and claimed that the president had done nothing wrong.

Mr. Giuliani said there was no indication on the tape that Mr. Trump knew before the conversation about the payment from the Enquirer’s parent company, American Media Inc., to Ms. McDougal.

“Nothing in that conversation suggests that he had any knowledge of it in advance,” Mr. Giuliani said.

The men discussed a payment from Mr. Trump to Ms. McDougal — separate from the Enquirer payment — to buy her story and ensure her silence, Mr. Giuliani said. That payment was never made, Mr. Giuliani said, adding that Mr. Trump had told Mr. Cohen that if he were to make a payment related to the woman, to write a check rather than send cash, so it could be properly documented.

Mr. Cohen’s lawyers discovered the recording as part of their review of the seized materials and shared it with Mr. Trump’s lawyers, according to three people briefed on the matter.

Mr. Cohen rejected repeated requests for comment. “We have nothing to say on this matter,” Mr. Cohen’s lawyer, Lanny J. Davis, said when asked about the tape.

David J. Pecker, the chairman of A.M.I., is a friend of Mr. Trump’s, and Ms. McDougal has accused Mr. Cohen of secretly taking part in the deal — an allegation that is now part of the F.B.I. investigation.

When The Wall Street Journal revealed the existence of the A.M.I. payment days before the election, Mr. Trump’s campaign spokeswoman, Hope Hicks, said, “We have no knowledge of any of this.” She said Ms. McDougal’s claim of an affair was “totally untrue.”

It is not clear how explicit Mr. Trump and Mr. Cohen were in their recorded conversation. Any evidence showing that Mr. Trump knew about the financial arrangement would undercut the Trump campaign’s statements.

Because the tape showed Mr. Trump learning about the A.M.I. payment, it actually helps Mr. Trump, Mr. Giuliani argued. “In the big scheme of things, it’s powerful exculpatory evidence,” he said.

The recording is potential evidence in the campaign finance investigation, but became tied up in a legal fight over what materials are protected by attorney-client privilege and thus off limits to prosecutors. It is not clear whether a federal judge has ruled on whether prosecutors can listen to the recording.

This would not be the first time that Cohen would be at the center of an effort to keep a woman who has claimed to have had a sexual relationship with Trump quiet during the course of the Presidential campaign.  During roughly the same time period that this conversation took place, Cohen was closely involved with the negotiation of an agreement with adult film star Stormy Daniels on the eve of the 2016 General Election under which Daniels was paid $130,000 for her silence regarding an alleged relationship with Trump some ten years earlier at roughly the same time as McDougal has alleged she had a longer-term relationship with the real estate mogul. Initially, the President denied having any knowledge about Cohen’s agreement with Daniels and said that he knew nothing about the payment to Daniels and never reimbursed Cohen for the payment. Cohen backed up these statements by the President, saying that he had negotiated the agreement on his own, that the money came from a second mortgage he took out on his home, and that he was never reimbursed for that payment. While that explanation did not make sense when taken into context with the story that Daniels herself told regarding the circumstances of the agreement, it’s one that Trump’s camp and Cohen maintained for a number of months after the story became close.

All of this changed, though, soon after Cohen’s office and home were searched by the F.B.I. pursuant to a search warrant and after information regarding the Daniels payment and other legal matters were passed along to the United States Attorney for the Southern District of New York by Special Counsel Robert Mueller’s investigators and the Justice Department in Washington. Within a month after that, Rudy Giuliani, who had only recently been hired as one of President Trump’s attorneys, revealed that Trump had in fact reimbursed Cohen for the payment and suggested that the President did know about Cohen’s payment to Daniels notwithstanding his previous denials. Subsequently, the President has filed a financial disclosure acknowledging the fact that he reimbursedCohen after all. As noted above, while Cohen didn’t go into details about the Stormy Daniels affair, his response certainly seems to hint that he knows more than what’s been made public, and that could be of interest to prosecutors.

The circumstances surrounding the McDougal case are different from the Daniels case in several respects, but also similar enough that they raise the question of whether there was a common practice of making payments to women that Donald Trump had affairs with in an effort to keep them quiet. In the McDougal case, the payment that was made to her that we know about came not from Cohen, but from the owner of the National Enquirer David J. Pecker, who is the Chairman and CEO of American Media, Inc., the publisher of that and a number of other publications who also happens to be a close friend of Trump’s. McDougal has claimed that Pecker and AMI essentially sought to deceive here into selling her story to AMI so that it would have exclusive rights to that story, in exchange for which she apparently received $150,000 as well as promises that she would be given space in the pages of other AMI publications in the future. McDougal has also said that her attorney at the time was also in communication with Michael Cohen regarding such an agreement, although she was not aware of those conservations at the time and the contents of those communications were never revealed to her. In March of this year, McDougal filed suit against AMI alleging that it had not complied with those provisions of the agreement and that the entire purpose for entering into the agreement was to obtain the rights to the story of McDougal’s affair with Trump and then never publish, a practice known as “catch and kill” that AMI has been known to use in the past when it came to stories about people with whom Pecker has a close relationship, such as President Trump. That lawsuit was settled in April, with the result that McDougal was released from the agreement and is now free to speak about her relationship with Trump, although she had already done so in an interview with CNN’s Anderson Cooper a month prior to settling the case.

There are several things that are unclear about this tape and what it might mean going forward. As a preliminary legal matter, it’s worth noting that New York is a “one-party” consent state when it comes to recording conversations, meaning that the recording was legal as long as one of the parties knew it was being recorded. Since Cohen was the one who made the recording, that’s clearly the case here. Additionally, it was reported months ago that Cohen had the habit of routinely recording conversations he had with third parties, although he had reportedly claimed that he had never recorded conversations with Trump. Therefore, it isn’t entirely surprising that this recording exists.

What isn’t clear, though, is whether or not this conversation would be covered by the attorney/client privilege. The answer to that question depends on whether or not Cohen was acting as Trump’s attorney with respect to this matter, or whether Trump at least he believed it was. If that’s the case, then the conversation would be considered privileged and it would be a serious ethical violation for Cohen to make the recording, or even a summary of what’s contained in the recording, public. There would be no violation, though, if Cohen was not acting as Trump’s attorney in this matter or if it was Trump’s side that leaked the recording, thus waiving any claim to the privilege regarding its contents. The final possibility, of course, is that the tape’s existence was leaked by someone close to the Southern District’s investigation but that seems unlikely both because such an action would be a serious problem for the U.S. Attorney’s office and because this initial report seems to suggest that the tape has not yet been turned over to the F.B.I. because of the ongoing inquiry into what material seized from Cohen’s office may be covered by an applicable attorney/client privilege.

It’s too early to tell what impact this tape, and any others that might exist, could have on the investigations swirling around the President, but it’s clearly not good news and yet another indication of just how important the developments regarding Michael Cohen could end up being. Within weeks after the F.B.I. search of Cohen’s home and office, there were signs that the President was clearly worried that his former attorney might cooperate with investigators and that, generally speaking, he was more worried about the Cohen investigation than the Mueller investigation. Those reports resurfaced in May. Last month, we learned that Cohen’s defense team had terminated a joint defense agreement with Trump’s legal team and that Cohen has said in an off-camera interview with ABC News that he was primarily concerned with himself and his family. Both of these were seen as pointing to the possibility that Cohen, the man who reportedly knows all of Donald Trump’s secrets might be about to become a cooperating witness with prosecutors in both New York and Washington. If true, that could be the most significant development of all in this entire investigation.

FILED UNDER: Donald Trump, Law and the Courts, Politicians, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Mark Ivey says:

    He left his “Trump insurance” in a place where it could be seized. Sloppy.

  2. Joe says:

    I would conclude that this tape will tell us nothing we don’t already know, except for the fact that Giuliani says it will tell us nothing we don’t already know or even help Trump, which leads me to wonder whether it won’t tell us something new and more damaging about Trump.

  3. MarkedMan says:

    Think about all the Trumpoids out there who think they have hitched their wagon to “Donald Trump: Genius Without Fear”. Trump has just been quoted as saying “I can’t believe Michael did that to me”. Think about this. We know from past revelations that Trump had Cohen record conversations with others. We know that Trump used Cohen to be his thug bully boy in drama after drama, and most of those dramas revolved around Trump breaking a promise, intimidating some poor woman who had the misfortune to come into contact with Trump’s sweaty little hands, screwing over some poor independent contractor who thought that delivering goods per contract would mean they actually get paid. If reports are correct, he recorded the conversations on behalf of Trump! So Trump knew Cohen recorded conversations, he knew that Cohen knew that Trump broke promises and screwed people. And yet somehow Trump seems genuinely shocked and hurt that Cohen would record him.

    This pathetic, bumbling loser is who the Trumpoids admire. This clownish oaf of a man. Sure he’s a bully, and the Trumpoids like to tuck under the wing of someone who isn’t afraid to punch down. But he’s such a loser. I can’t believe they are still not embarrassed this is their guy.

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  4. Daryl and his brother Darryl says:

    David J. Pecker…seriously?

    Apparently Dennison is shocked that Cohen taped him.

    “I can’t believe Michael would do this to me.”

    I just want to note again that this ongoing shit show of a dumpster fire is all of their own making…all unforced errors…all self-inflicted wounds.
    What happens when something unimaginable…a la 9-11…happens?
    Oh wait…Puerto Rico…and 4000 people died waiting for help.
    We are sitting ducks…with no one at our defense.

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  5. Pylon says:

    The privilege issue concerned me. But has Giuliani now waived any privilege that existed? It wouldn’t shock me – the man is incompetent.

  6. James Pearce says:

    If that’s the case, then the conversation would be considered privileged and it would be a serious ethical violation for Cohen to make the recording, or even a summary of what’s contained in the recording, public.

    Sometimes you have to do the wrong thing for the right reasons.

    I mean, if releasing the tape/file is a serious ethical violation, it’s only the latest in a series of them and getting all ethical about releasing the tape/file seems like drawing the line at a very arbitrary, weird place.

    Or am I off my rocker again?

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  7. Pylon says:

    All other issues aside, I imagine it’s not uncommon, nor a bad practice, for Trump’s lawyers and other advisors to tape conversations with him, if for nothing else but to establish that bad ideas were his, that they advised against things, etc. He is not doubt the type of client who blames his lawyer for bad outcomes.

  8. Tyrell says:

    It remains to be seen if this type of recording is legal. I always thought it was illegal and an invasion of privacy unless the person being recorded gives clear permission.
    But in these days there is no more privacy. Our emails, regular mail, forms, phone calls, computers, car computers, and more can be hacked and looked at by people in the government.
    Scary

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  9. Michael Reynolds says:

    @Tyrell:
    I don’t think that will affect its admissibility in court.

  10. de stijl says:

    This pic is like the least sexiest H&M ad evar!

  11. Daryl and his brother Darryl says:

    @Tyrell:
    @Michael Reynolds:
    New York is a “one-party consent” state. Perfectly legal. And it was obviously not a privileged conversation because the FBI got it after it was cleared thru the special master.

  12. Kathy says:

    I’m not a lawyer, but I think a conversation between a client and their attorney is not privileged when it’s carried out as part of a conspiracy to commit a crime. That is, if El Cheeto called Cohen to tell him something like “make sure pecker pays and there’s no connection to me,” and if that constitutes a campaign finance violation, then the conversation ought not be considered privileged, as both men were actually engaged in a criminal conspiracy.

    I may be wrong.

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  13. de stijl says:

    @Daryl and his brother Darryl:

    I know what a “Special Master” is because of a Michael Connelly book. It was plot point.

  14. de stijl says:

    @de stijl:

    Action guy answering his phone! He sells it though. He is a bottom of the credits up-jumped extra credited as Dramatic Phone Guy. Had I skillz, i would do a mash up GIF of Dramatic Squirrel and Action Guy Michael Cohen, maybe they bleed together into one image.

    Refresher GIF link of Dramatic Squirrel for compare and contrast purposes to Michael Cohen pic: https://youtu.be/IqTerZkJaCU

  15. Just nutha ignint cracker says:

    @Tyrell:

    I always thought it was illegal and an invasion of privacy unless the person being recorded gives clear permission.

    Actually that depends on the state from what I’ve read in articles about it–during Clinton/Lewinsky. You may want to check with your local county prosecutor’s office or such before you go shooting off your mouth with the boys at the donut shop next time you go.

    Scary indeed!

    Mr. Trump had told Mr. Cohen that if he were to make a payment related to the woman, to write a check rather than send cash, so it could be properly documented.

    IANAL, so correct me if I’m wrong on this, but my understanding of such things was that “proper documentation” was the last thing one needs when one is paying bribes or hush money. Is this guy for real? Jeez…

  16. Tyrell says:

    @Daryl and his brother Darryl:
    I am not concerned one way or the other about Trump.
    What bothers me are the ramifications of this sort of thing concerning the average citizen and how our privacy is handled. That includes our mail, email, phone calls, medical records, tax records and other private information. Nothing is safe. A friend recently was the target of a internet crime and lost some money.
    And who knows how many government agencies are into all of our things. It is very tempting to junk the tv, computer, cell, landline, mailbox, and satellite. Maybe get an amateur or CB radio for emergencies.
    Even cars today have black boxes.

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  17. Liberal Capitalist says:

    This should be a HUGE story… and it likely would be, if it was anyone else.

    If it was the former POTUS, people would be storming the he was White House, threatening impeachment and assassination

    But now? It’s just Friday.

  18. Mister Bluster says:

    @Tyrell:..Even cars today have black boxes.

    I am assuming that you mean an enclosure that contains a computer processor/chip. aka ECU (Engine Control Unit).
    These have been in use for 50 years.

    The first use of a computer in a car was for the purpose of engine control. Automotive manufactures began introducing early versions of computer controlled systems to perform one specific function; In 1968, Volkswagen introduced the first computer controlled electronic fuel injection (EFI) system manufactured by Bosch.

    Maybe you have some other black box in mind.

  19. Barry says:

    @Mark Ivey: “He left his “Trump insurance” in a place where it could be seized. Sloppy.”

    Probably more like ‘item #2,456’ of his insurance.

  20. gVOR08 says:

    Maddow has on a Vanity Fair reporter who is saying this recording was marked as privileged, was not seen by the prosecutors, and was shared by Cohen’s lawyers with Trump’s lawyers under their then cooperation agreement. Apparently Trump’s people leaked it. Waving privilege by doing so. Maybe trying to get ahead of the story, maybe taking it away from Cohen as a plea deal chip, maybe ???

  21. de stijl says:

    @Tyrell:

    What bothers me are the ramifications of this sort of thing concerning the average citizen and how our privacy is handled. That includes our mail, email, phone calls, medical records, tax records and other private information. Nothing is safe. A friend recently was the target of a internet crime and lost some money.

    Even in Mayberry RFD this crow has come home to roost. Good lord, man, even oblivious you has to know that we, the Ds are on side in this matter, and they, the Rs are not. We approve of Net Neutrality, and we want your business to stay your business via a passel of privacy provisions we cannot pass because Paul Ryan and Mitch McConnell will not us let vote on these measures.

    Ask your congress-critter whether he or she approves of Net Neutrality. If not, why not? Help us win the House and we will set the matter straight toot sweet.

  22. de stijl says:

    @Tyrell:

    Even if you decide not to help us, we’ll still help you in this endeavor. Other issues too that will pop up soon. We’ll help you and you don’t have to vote for us ever – your call, that’s kinda our thing. It sounds stupid, but that’s what we do. We try our best to improve lives.

  23. de stijl says:

    ah – epiphany.

    I get it now.

    When we say “It sounds stupid, but that’s what we do. We try our best to improve lives.” Rs think we are lying and trying to fool people, when we’re actually trying to improve the lives of people who very likely will not vote for us. It’s why R projection fails. They’ve internalized this notion that our actual goal is actively harming America (by helping fellow Americans.)

  24. Just nutha ignint cracker says:

    @Mister Bluster: I suspect that he’s thinking more along the lines of GPS and driving information systems. The early ones were called Lo-Jack systems. My Chevy Spark has two–On Star and My Link. They’re very convenient and Chevrolet and the dealership has started paying for the basic service for each because people like me won’t actually buy the service, but Chevrolet gains considerable advantage in keeping my car out of the shop for work they might have to pay for if it wasn’t on.

    I don’t worry as much about this type of stuff as Tyrell does even though I’m probably close to his age. First, I didn’t grow up in Mayberry, so I’m not as awed by all this new-fangled type stuff. Secondly, my memory seems to be much better than Tyrell’s because I can remember that Stalin (and the FBI as far as that goes) did a good job of keeping tabs on whoever they wanted to generations before any of the online surveillance technology existed. He seems to have forgotten that when the government wants you badly enough, they will find a way. Remember, nobody has ever figured out what happened to Hoffa (heh heh heh). I estimate that history students in about 60 or so more years will know though, declassified files.

  25. CSK says:

    @Lava Land:

    What in hell does that babble mean?

  26. Tyrell says:

    @Mister Bluster: This black box is not the same as the computer that runs the systems and gives out engine codes. This box cannot be accessed by the car owner. The only people who can get in it is the car dealer and law enforcement. Thus the controversy that had a few state attorney generals ready to take a car company to court a few years ago. It was either Toyota or Honda. I have not heard anything since. If a car owner tries to get in it the car shuts down completely and will not run unless a car dealer technician fixes it. There were concerns that police could start using it to see if someone had been speeding, driving without the seat belt, or other traffic offenses. The car manufacturers and dealers have been evasive on this.

  27. Blue Galangal says:

    @Tyrell: I think the term you’re looking for is “OnStar.”

  28. gVOR08 says:
  29. Moosebreath says:

    @Blue Galangal:

    No, Tyrell may be thinking about the systems the insurance companies are pushing people to install, where they can track your driving habits and give you a discount for being a “safe” driver. They don’t report you to the police, but this is about as accurate as Tyrell gets when talking about the modern world.

  30. Just nutha ignint cracker says:

    @Moosebreath: Yeah. I had one of those in my car for a while when I was with Progressive to see if I qualified for a discount. The system ruled that I didn’t because I make too many right and left turns. IKYN! They cited a journal article that purported that people who drive in straight lines to the places they are going have fewer accidents.

    (what???)

  31. Pylon says:

    @Just nutha ignint cracker:

    IANAL, so correct me if I’m wrong on this, but my understanding of such things was that “proper documentation” was the last thing one needs when one is paying bribes or hush money. Is this guy for real? Jeez…

    What do you want to bet that Trump was not concerned about documentation- he was planning on being able to stop payment on the cheque.

  32. MarkedMan says:

    I don’t write this very often, but Tyrell is right. It is routine that modern embedded control systems keep logs of events. In fact I’m currently helping a medical device manufacturer make better use of the data contained in their logs. At their most basic, they are essential to debugging a system while they are under development and even if the manufacturer doesn’t intend to gather data from it, no engineer would take it out when it’s ready for market under the general rule, “if the system is working, don’t touch it!”

    And he’s right that such systems in autos have been subpoenaed in criminal and civil cases. They do record speed, acceleration, whether the brake or gas pedal was pressed and how hard, what radio station you tuned to and what the volume setting was. Pretty much anything or everything might be there depending on the manufacturer.

  33. Blue Galangal says:

    @Moosebreath: I was being flip, but I do have a new car with OnStar (emergency only) and I get a monthly report from it about my driving practices, including how many times I braked suddenly and accelerated too quickly. It’s not a stretch to think that OnStar – by itself – could be tracking the very information Tyrell’s talking about with no further black boxes required.

  34. grumpy realist says:

    @Blue Galangal: Sounds like having a nagging mother-in-law in the back seat.

    I’d hate to have to continually explain to my insurance company that no, THAT time I braked because of trying to not hit a deer that ran out into the road, THIS time I had to swerve because I’m driving on I-90/I-94 at 6AM and everyone else is driving like an acute zombie, etc. etc. and so forth.

    Will pass, thankyouverymuch.