Cohen’s recording of Trump is a warning sign

Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney in New York City and is of counsel at Pierce Bainbridge. She frequently appears on CNN as a legal analyst. Follow her on Twitter: @CarolinePolisi. The views expressed in this commentary are her own. View more opinion articles on CNN.

Michael Avenatti was right: The “#trumptapes” do exist. Michael Cohen, the man who once said he’d be willing to take a bullet for Donald Trump, has now provided perhaps the strongest evidence against him.

As first reported by New York Times, the FBI is now in possession of at least one recorded conversation between Michael Cohen and Donald Trump regarding payment to Karen McDougal, 1998 Playmate of the Year, and now the second-most-famous-alleged-Trump-mistress.

You may remember McDougal from her tearful and heartfelt interview with CNN in which she detailed the months long love affair she said she had with Trump in 2006. She was allegedly paid $150,000 by American Media, Inc. (“AMI”) – publisher of the tabloid magazine, The National Enquirer – for the rights to her story, which was never published, a practice known as “catch and kill” in the media industry.

There’s nothing criminal about the practice of catch and kill. But if it turns out that there were multiple payments to women for the purpose of aiding the Trump presidential campaign, which was formally launched on June 16, 2015, and those payments were not disclosed as campaign contributions, both the Federal Election Commission and the Department of Justice could potentially pursue claims against Trump and Cohen.

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The parallels between this case and 2008 presidential candidate John Edwards’ payments to videographer Rielle Hunter, with whom he had a child, are hard to miss. The Edwards case fizzled, in part because prosecutors couldn’t prove the requisite intent on the part of Edwards to secure a conviction. But this case may be different.

This recent bombshell is even more relevant when combined with what we already know about the hush money payment made to Stormy Daniels, which involved the now-infamously-bungled nondisclosure agreement between Daniels and Essential Consultants LLC, the Delaware limited liability company Cohen created which was used in both the $130,000 payment to Daniels and also implicated in the $1.6 million payment offer to a former Playboy model who allegedly had an affair with top Republican National Committee official Elliott Broidy (he has since resigned).

How many more women are involved in what now seems to be a coordinated pattern and practice on the part of Cohen and Trump to silence women for Trump’s political gain?

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Cohen, Donald Trump’s longtime attorney and “fixer,” secretly recorded a conversation he had with then-candidate Trump about the potential of an additional payment to McDougal, approximately two months prior to the election.

We’ve known for a while that Cohen had a propensity to tape his conversations.

But we didn’t know he had recorded his conversations specifically with Trump. This begs the question: If Cohen recorded this conversation, what else was swept up in that now infamous raid by the FBI of his home, office and hotel room on April 9, 2018? CNN reported Friday that the FBI also seized tapes of Cohen speaking with other “powerful” individuals.

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This, of course, is all playing out against the backdrop of the looming possibility of a criminal indictment against Cohen by federal prosecutors in Manhattan. Cohen’s recent off-camera interview with George Stephanopoulos is the strongest indication I’ve seen thus far in Cohen’s ongoing legal saga that he will likely cooperate with federal prosecutors.

But even if he doesn’t decide to “flip” on the President, the mere fact that he recorded conversations with his former boss may be both men’s undoing, especially in the event a criminal case is brought. For any prosecutor, a key element of a criminal case is showing that someone violated the law and violated it knowingly. For the purposes of proving the latter, a tape-recorded conversation about a payment before it happens is some of the most damning information a prosecutor can wield.

We of course do not know what is on this tape or the others in possession of the FBI. But we know the FBI has them, and that should make Mr. Cohen and his former client very uneasy.