LET'S GO TO THE TAPE

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The press is going berserk over the tape of the conversation between candidate Donald Trump, and his trusted lawyer/fixer, Michael Cohen. There are several good reasons for the media's keen interest:

As to the substance of the tape:

1. It establishes, without doubt, that candidate Trump flat-out lied when he publicly denied knowledge of the National Enquirer's "Catch and Kill" purchase of an article written by paramour Karen McDougal, in which she set out the details of her 8-month-long affair with Donald Trump. Trump's adulterous relationship with McDougal began one month after Melania gave birth to Trump's son Barron.

2. Trump and Cohen discussed a plan to buy from Trump's friend David Pecker, owner of the Enquirer, the rights to Ms. McDougal's story. The election was two months away, and Trump and Cohen feared that if the Enquirer were sold, or something happened to Pecker, the facts could end up in unfriendly hands, with the result the voters would learn about Trump's post-partum partying.

3. The boys talk about paying Pecker $150,000, which is what Pecker paid Karen McDougal. But then Trump tells Cohen to pay it in cash! (There is some dispute about that. Giuliani says he hears Trump saying on the tape "Don't" pay in cash, pay by check, but nobody but Giuliani hears the word "Don't" on the tape, and CNN had the tape analyzed by an independent expert who concluded with absolute certainty that the word "Don't" does not appear on the tape preceding Trump's instruction to "pay in cash."  150k in green? Who does that?

4. Aside from establishing the thuggish character of both Trump and Cohen, the tape may be conclusive proof of  felony conspiracy. These guys are planning to own and secrete a felonious unreported campaign contribution. The fact that the goal of the conspiracy was not accomplished is irrelevant. The crime is complete when the defendants plan the illegal act and one participant does an overt act to advance the conspiracy. Cohen accomplishes that by admitting on the tape he has arranged the financing of the transaction with the Trump Organization's Chief Financial Officer Wesselberg. That, and/or Trump's pre-election published lie to cover up the scheme, should suffice.

But all of the above, I suggest, is not the real guts of the issue. We already knew Trump was a sociopathic liar, that he is an unfaithful lout, that he and Cohen were thugs, and that Trump probably committed scores of crimes during and after the campaign.  The question is, so what? Can he be kicked out of office by one means or another, prosecution, impeachment, forced resignation, etc., etc.?

That leads us to the second question: How did this tape of a conversation between lawyer and client get published, and what is the real significance of those events?

A brief reminder of the background: the feds in the Southern District of New York procured a search warrant and seized lots of stuff from Cohen, including audio tapes of conversations with his client and others. The District Judge established a filtering procedure to protect lawyer-client privileged conversations, and she appointed a Special Master, former federal judge Barbara Jones, to oversee this process: before the prosecutors could read or listen to any of the material, a copy of everything was turned over to Cohen's lawyers to screen for any privilege Cohen had in communication with his lawyers, and Cohen's team would then turn over to Trump's lawyers any material that might infringe on Trump's privilege respecting a communication with his lawyer Cohen.  (As attentive readers,  y'all know, of course, the attorney-privilege belongs to the client, not the attorney. In that regard, you are way ahead of much of the media. I see, over and over, headlines and talking heads discussing the question of why Cohen waived the privilege respecting the tape of his conversation with Trump. Shame on them!)

Okay, down to business. The important stuff:

The Process:

The feds gave copies of the entire take from the Cohen raid to Cohen's lawyers, who gave the tape in question to Trump's lawyers, who designated it for Jones to review as a privileged communication. Until the Special Master ruled, the tape could not be turned over to the feds.

But earlier this week, the Trump team withdrew their claim of privilege on this tape, and Jones gave it to the prosecutors.  Why would Trump withdraw a privilege designation respecting a tape so damaging to him?

I can think of four possible reasons. In the order of my estimate of likelihood of being the reason for that decision:

I.  By asserting the privilege, Trump risked a ruling by Jones that the tape was not privileged because of the crime/fraud exception to the attorney-client privilege. That is, what the participants were planning was a crime or a fraud, or both.

 Such a finding would be devastating to Trump.

II. Trump's lawyers may have concluded, that on second thought, the tape really did not qualify as privileged, because the privilege applies only to a request for, or the rendering of, legal advice, and this was a discussion of a business transaction and had nothing to do with legal advice.

III. Inasmuch as Trump was likely to lose any privilege claim because of items I and/or II above, withdrawing the designation of the document as privileged permitted Trump later to claim that Cohen was no longer acting as his lawyer anyway. If Cohen was not his lawyer, not his "agent, then Trump would not be bound by Cohen's statements. If this sounds too bizarre even for Trump, go back and re-read last week's newspaper and see Trump try to turn black into white by doing the "would, would not" clown act.

IV. Trump could have feared, whether privileged or not, the tape would be leaked, and he wanted to get out ahead of it with a publicity campaign principally consisting of i) Giuliani's laughable, manic claim the tape was really "exculpatory," and ii) Trump's "shocking" tweets that Cohen was an unfaithful lawyer.

Okay, so let's move to the final, and what I suggest is the most important, part of this story: How and why did CNN get the tape?

Answer: The tape was given to CNN by Michael Cohen. It was, without question, unethical for Cohen to have done so even though he tape was not a privileged communication. But Cohen has much bigger fish to fry than mere ethical violations.

Why would Cohen publish the tape?  I can think of three possible reasons:

I.  I saw one talking head (her announced expertise was that she had served as an assistant U.S. Attorney somewhere outside of New York) suggest the publication of the tape was psychologically necessary for Cohen to come to grips with the fact that Trump was no longer was his buddy, and this attack on Trump helped him to mentally adjust to the new reality.

I am not kidding. She said all that, and the panel members and the host treated it seriously. I have never before heard such drivel. It makes Trump's claim of "fake news" seem valid!

II. The majority view of the media smarties was that this was Cohen's way of announcing to the prosecutors he was willing to attack Trump, and therefore he was willing to flip if he could get a good deal. 

This theory makes no sense to me at all. If he wanted to talk to the SDNY fuzz, their telephone number is in the book. In fact, one of Cohen's lawyers is a former SDNY AUSA. Instead Cohen used Lanny Davis (ugh, I winced when I saw his name after all these years) to engage in a public pissing contest with Rudy Giuliani.

Bottom line:  Cohen does not make himself more valuable to the feds by publishing material the feds already have!

III. This is Cohen's way of serving notice on Trump. Cohen knows that if you wanna get a mule's attention, ya gotta hit him on the head with a 2 x 4. In this instance, the tape was the timber. So here is the message Cohen is sending to the President of the United States of America, in code so simple that even this president can decipher it:

"Donald, this is your last chance. I am up to my chin in criminal charges here and am not willing to do 10-15, even in Club Fed. My lawyers tell me I cannot call you and directly negotiate for a pardon. They use fancy legal terms not in my lexicon, like "bribery," "extortion," and "corrupt bargain." So I published this tape as a small coded sample of what I have to offer the feds, and leave you to figure out your next step.  

Aside from Stormy Daniels and Karen McDougal and the other "fixes" I have accomplished for you, please remember the more important stuff. Donald, please think back on my discussions with you on how I should and did respond to Felix Sater's emailed offer to have Putin get behind your run for President. Please think about my discussions with you about how we should and did respond to the Russians' offer at that meeting with your team consisting of Donald Jr., Jared Kushner, and Paul Manafort. I'm sure you remember that episode: that was the so-called "adoption" meeting that you, Junior, and Hope Hicks later lied about, etc., etc.

I know you are very busy, but I suggest you break away from Fox news during a commercial, and to think back on some of the other important stuff I have done at your bidding. Have one of your team read to you the McClatchy news reports and the sections of the Steele Dossier that revealed how I met in Prague with Gucifer.2  just before the start of the hack of the Dems. That fucking Steele even quotes the Russian sources that reveal the "the key role" I played in leading the "Trump campaign efforts with the Russians," and worst of all, the discussions I had in Prague regarding the arranging of "deniable payments" "by the Trump team and the Kremlin." to the anti-Clinton hackers. Mueller, of course, has those reports, but Gucifer.2 and Putin ain't talking and so far, Mueller has no direct confirmation from a person present at those meetings. (Unless, of course, Mueller's team has rock-solid info from Flynn, or Gates, or Papadopoulos, or others, in which case you and i are totally screwed no matter what we do.)

Donald, I know you are pissed, and I know there will be a big fuss, but there is only one way out for both of us, and that is for you to PARDON me, and soon. You really have no choice. And you will be okay. You will surely survive the publication of the tape I published to get your attention. And though you will take a lot of heat, I'm sure you will survive impeachment because Paul Ryan is a retiring spineless wimp, and even if the Republicans lose the House, you own McConnell and there are enough Republican Senators who are so afraid of offending your base they will stick with you and will drink the Kool-Aid dispensed by your chorus of sycophants. That group, I am sure,  will readily adopt your claim that "Cohen is no longer my friend, but I pardoned him because he doesn't deserve to be burned at the stake in this witch hunt!"

On the other hand, Donald, if you do NOT grant me a pardon, and you force me to tell all to the feds, your "No Collusion" defense will collapse and you will be toast. In that event, you not only will lose the Presidency one way or the other, but you are likely to face indictment once you are out of office. Or even sooner.

Finally, I feel I should tell you that while I know you don't really care one whit about either them, the souls of Donald Jr. and Jared are among the moths in my shoebox.

Best regards from your former pal,

Michael

P.S.  Donald, although it is no longer in my portfolio, a word of advice: Telling the public "What you are seeing is not really what is happening" is not the way to go these days. Way too Orwellian."

In case I am not being clear, in answer to the question of why did Cohen publish the tape, I choose option "III".