Is Donald Trump in Deep Legal Trouble Over the Michael Cohen tapes? Let’s Ask John Edwards

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26 July 2018

It's been clear for some time that Michael Cohen is the most irritating thorn in President's Trump's side. Even though Trump is suspected of colluding with the Russian government, his approval rating remains mired in the low 40s at best and he's facing the prospect of losing at least one house of Congress this fall, he has always appeared more concerned about his former lawyer's legal predicament and what that means for him.

When the warrants to search Cohen's office and residence were first issued back in April, Trump flipped his lid in an infamous tirade for he TV cameras in front of the cabinet:

It was another of his frequent "L'Ã©tat, c'est moi" moments in which he equates any actions against him personally with attacks on the United States of America. Ever since then Trump has seemed more off balance than usual, bouncing frenetically all over the globe and desperately changing the subject whenever it comes up.

We don't know what Cohen has on Trump, but it's pretty clear that there is more to their relationship than what we've seen so far. And what we've seen is damning.

On Tuesday evening, Cohen's lawyer and PR adviser, Lanny Davis, gave CNN a tape of Cohen and Trump discussing the payment of hush money in the case of Karen McDougal. She is one of the women who says she had an affair with Donald Trump in the period shortly after his current wife, Melania, gave birth to their son, Barron. (The other is of course adult film actress Stormy Daniels.) After Trump got the Republican presidential nomination, McDougal decided to tell her story. Trump, through his fixer Cohen, apparently arranged to have his friend David Pecker, publisher of the National Enquirer, buy her story for six figures in order to bury it (a practice known as "catch and kill"). The tape reveals what sounds like Trump and Cohen talking about how to reimburse Pecker for his troubles.

Rudy Giuliani, Trump's lawyer, suggested to Fox News host Laura Ingraham on Tuesday night that Trump told Cohen, "Don’t pay with cash." Giuliani said, "I don't think anyone can suggest this [recording] represents anything where the president did anything wrong."

Cohen's lawyer, Davis, does not agree. He said, "Listen to the tape, everyone. This is not a man shocked when Mr. Cohen said, we have to make payments."

The chatter in the aftermath has largely been all about what was said and what was meant by the "cash vs. check" part of the conversation. But the real issue is that statement by Davis. Trump was clearly not shocked by the subject of hush money being paid through a third party (allegedly American Media, publisher of the National Enquirer) to one of his former mistresses. In years gone by this alone would have sounded the death knell for a presidency solely on political grounds. Trump's voters, of course, don't care about his womanizing ways or the fact that he paid money to keep his mistresses quiet. Perhaps they believe that's another example of his stable genius at work.

There are laws against someone paying hush money when they are running for office, however, at least if they don't properly report the expenditure. And there are laws against evading banking reporting requirements, such as those that caught up with former House Speaker Dennis Hastert when he was paying hush money to a former student whom he abused as a high school wrestling coach. The tenor of the taped conversation between Trump and Cohen clearly suggests that they knew they were doing something that was not on the up-and-up.

As Salon's Amanda Marcotte pointed out back in January, the most obvious parallel to the Trump payoff scheme is the case of John Edwards, the former U.S. senator and two-time presidential candidate. Edwards was tried on felony charges of making illegal, unreported campaign contributions through wealthy donors to pay off his mistress during his short-lived 2008 presidential run. (Marcotte worked on that campaign.) He was acquitted on one charge and the jury was unable to agree on five others; ultimately the Justice Department decided not to retry the case. Davis, Cohen's lawyer, brought up the Edwards case recently with MSNBC's Katy Tur, so it's definitely on Cohen's radar.

According to experts in campaign law, this case is much stronger than the Edwards case because of one thing: Michael Cohen. Ken Dilanian at NBC News recently interviewed Brett Kappel, a campaign finance expert with Akerman LLP. He said that he people who made the payments to Edwards' mistress, Rielle Hunter, over the course of two years all said that their motive was to spare Edwards' wife, Elizabeth, who was dying of cancer.

If they were telling the truth, what happened was sleazy and dishonorable, but not a direct violation of campaign finance law. The Trump-Cohen payoff arrangements came much closer to the election, and one of the participants appears to be ready to testify that that the motive went beyond avoiding personal embarrassment. We know that at least one other woman was paid off in the same period. There are tapes.

Cohen seems poised to come clean. He is angry at Trump, who by all accounts treated him like a lackey and has backed away from Cohen as his troubles mounted, balking at paying his longtime crony's legal fees and distancing himself publicly. More important still, Cohen knows he is in big trouble and must do what he can to save himself. It's obvious that he's going to cooperate.

It's unclear why Cohen and Davis think it's in their best interest to go public, but there seems to be a lot of maneuvering around the attorney-client privilege issue in this case. Perhaps they know something we don't. Nonetheless, this is looking like a big problem for Trump. He's been acting even crazier than usual since Cohen was served with that search warrant, which lends credence to the idea that the president knows that Cohen has something valuable to trade with federal prosecutors.

Lanny Davis sent Trump a message on Tuesday night:

Cohen is trying to reset his life as not being Donald Trump's bullet-taker, or worse, a punching bag for Donald Trump's defense strategy where he takes the bullets. This is a turn for him. It's a new resolve to tell the truth no matter what, even if it endangers him. He has more truth to tell. It's unclear the impact of that truth but he has more to tell.

On Wednesday the White House took the unprecedented step of banning CNN reporter Kaitlan Collins from covering a Rose Garden event because she had asked "inappropriate" questions about the Cohen tapes. Trump was clearly upset by that. For the moment, we can only wonder why.