A “bizarre and brazenly unethical” secret recording of Donald Trump made by his then-lawyer Michael Cohen could be the weapon that clears the former president in his hush money case.
Former prosecutor Elie Honig said the recording, found during an FBI search of Cohen’s office and catching a September 2016 conversation in which Trump and Cohen discuss payments to adult movie actress Stormy Daniels, not only damages the ex-lawyer’s credibility — it could also absolve Trump of involvement in a crime.
Trump is facing 34 counts involving falsifying business records relating to payments made to Daniels, allegedly to buy her silence about a sexual relationship she had with Trump before the 2016 election.
But Honig wrote for New York Magazine that the tape actually suggests Trump was not involved in the falsification of records.
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“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,” Honig wrote.
“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.”
The tape, Honig wrote, shows Trump did know about the payments and approved of them.
“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 …”, Honig wrote, describing the tape.
“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 uninterested 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.'”
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So, Honig wrote, the tape Cohen recorded apparently for insurance could actually show that Trump was not involved in the crimes he is accused of.
Honig also wrote that just making a secret recording of a client is “brazenly unethical” and could fundamentally damage Cohen’s credibility with the jury in the case.
Cohen is expected to be called as a key prosecution witness in the ongoing New York trial in the coming weeks.
Trump has denied all allegations against him.
