- President Donald Trump’s former longtime lawyer Michael Cohen is under fire after releasing a secret audio recording of a conversation he had with his old boss in September 2016.
- Prosecutors were reportedly unaware that Cohen’s legal team was going to release the tape. The move could complicate his ability to reach a deal with the government.
- Meanwhile, Trump’s personal attorney Rudy Giuliani, now says Cohen has “lied all his life” and is attacking his credibility.
President Donald Trump’s former longtime lawyer Michael Cohen is under intense scrutiny after he released a secret audio recording he made of a September 2016 conversation with his old boss.
That tape is said to have been made without Trump’s knowledge, and featured a conversation between the two men in which they discuss buying the rights to the story of a former Playboy model, Karen McDougal, who says she had an affair with Trump years ago.
On the tape, which was released to CNN by Cohen’s attorney Lanny Davis, Cohen can be heard claiming he discussed forming a company and creating a financing plan to purchase the story with Allen Weisselberg, chief financial officer of the Trump Organisation. Weisselberg was reportedly subpoenaed to testify before a grand jury by federal investigators probing Cohen in the Southern District of New York, where he is under criminal investigation.
The tape also cuts out at a critical point, right as a voice that appears to be Trump’s says “check” when discussing how to purchase the story from American Media Inc., whose head, David Pecker, is a longtime friend of Trump. The National Enquirer, owned by AMI, purchased the rights to McDougal’s story for $US150,000 in August 2016 but never published it.
Mitchell Epner, an attorney at Rottenberg Lipman Rich who was previously an assistant US attorney for the District of New Jersey, told Business Insider that if Cohen was misleading about the conversation with Weisselberg or altered the tape at all after it was created, “that would have enormous consequences for the prosecutors’ assessment of his credibility as a potential witness.”
Under most circumstances, Epner said such “a tape is the gold standard of corroboration for a cooperating witness.”
“Corroboration is key with cooperators, because prosecutors know that jurors are loathe to believe self-serving statements from co-conspirators,” Epner said, adding that if “the tape is compromised because Michael Cohen set out to create false evidence at the time or doctored the tape after-the-fact, the prosecutors would not be able to use the tape to buttress Michael Cohen’s credibility – which might make them less likely to sign him up as a cooperating witness.”
Prosecutors caught off guard by the tape’s release
The release of the tape itself came as a surprise to prosecutors handling the Cohen case, people familiar with the matter told The Washington Post.
The tape itself was seized during the FBI’s April raids of Cohen’s home, office, and hotel room. Trump’s attorneys waived privilege claims over that tape and 11 more recordings obtained from Cohen. Those tapes are now able to be used by the government in a potential prosecution of Cohen, who is under investigation for possible campaign finance violations, bank fraud, wire fraud, illegal lobbying, or other crimes.
Cohen’s legal team didn’t tell the US Attorney’s Office for the Southern District of New York that it would be making the tape public, people familiar with the matter told CNN, which reported that the decision could complicate Cohen’s ability to reach a deal with prosecutors.
A source close to Davis told Business Insider that Cohen’s team was “forced” to release the tape to correct two false comments made by Rudy Giuliani, Trump’s personal attorney, about the recording. One was that Cohen, and not Trump, used the word “cash” when discussing how to purchase McDougal’s story. The other was that Trump did not know about the McDougal payments prior to Cohen bringing them up in the conversation. The source close to Davis said the tape made it seem clear Trump was not being introduced to this subject for the first time.
“I completely understand why under ordinary circumstances prosecutors would not approve of what I did,” Davis told CNN on Wednesday. “But I believe they would at least understand that I had an obligation to my client to correct the record on something harmful to him.”
Roland Riopelle, a partner at Sercarz & Riopelle who was formerly a federal prosecutor in the Southern District of New York, told Business Insider the office would most likely “not like” the releasing of the tape “because this all becomes fodder for a cross exam of Cohen if he ever testifies, and gives the defence the benefit of the many comments from the peanut gallery as to what it all means.”
Riopelle said the disclosure is unlikely to “help Cohen get a deal” because “it appears” he and Davis “are loose cannons.”
Prosecutors in the Southern District of New York “in particular have a playbook they expect their witnesses to follow,” Riopelle said, adding, “This is not it.”
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