The legal implications for Trump and AMI hinge on their intentions, which can be hard to prove absent direct evidence.
“A lot turns on Trump’s motivation for discussing a payment to AMI. Was the purpose to reimburse AMI for purchasing McDougal’s story as a favor to Trump? If so, that’s unhelpful to AMI and Trump,” said Bruce Green, a law professor at Fordham University and a former federal prosecutor. “On the other hand, if Trump did not know that AMI bought the story to help him and his campaign by taking it out of circulation, and he was worried that AMI might publish the story, that may tend to exculpate AMI. And, on that version, Trump is off the hook because he never made the purchase.”
In the past, Trump’s legal representatives have suggested that the payments made by Cohen were in fact intended to protect Trump’s presidential campaign. Trump has previously said that Cohen was paid “a retainer” to “stop the false and extortionist accusations” made by Daniels, and tweeted that “money from the campaign, or campaign contributions, played no roll in this transaction.” Giuliani, Trump’s attorney, has undercut that explanation in media appearances. “Imagine if that came out on October 15, 2016, in the middle of the last debate with Hillary Clinton,” Giuliani said on Fox News in May. “Cohen didn’t even ask. He made it go away. He did his job.”
Trump appears to have soured on Cohen since. On Tuesday morning, Trump tweeted, “What kind of a lawyer would tape a client? So sad! Is this a first, never heard of it before? Why was the tape so abruptly terminated (cut) while I was presumably saying positive things? I hear there are other clients and many reporters that are taped—can this be so? Too bad!”
While Trump’s opponents may find the president’s complaint ironic, given his history of threatening critics with surreptitious recordings, he has a point—the recording could constitute a violation of professional ethics under New York’s rules of professional conduct. Even if it doesn’t, it could undercut Cohen’s credibility in front of a jury.
“Unless this was a taping that Trump told Cohen to do and keep, or a surreptitious or accidental taping that Cohen then revealed to Trump and was directed by him to preserve, this might be an incident of attorney disloyalty toward his client, which is perhaps unprofessional conduct and subject to discipline,” John Barrett, a law professor at St. John’s University and a former associate counsel in the Iran-Contra affair, told me.
One of the lingering questions is why Cohen has now seemingly decided to turn against Trump, and it’s one that is more complicated to answer than it might first appear. Davis, Cohen’s attorney, told The New York Times that Cohen was “on a new path—it’s a reset button to tell the truth and to let the chips fall where they may.”