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Michael Cohen is under fire after releasing Trump tape

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Michael Cohen
Michael Cohen.
Brendan
McDermid/Reuters


  • 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, the lawyer 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 Organization. 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 $150,000 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 defense 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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