During my career as a prosecutor, anytime I worked a case involving a large mafia takedown, defense lawyers would sit up throughout arraignment day and ask this one key question: “So, is this a tape case?” There’s no insider lingo involved here; tape meant “tape,” as in, “Do you have my guy on tape?”
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When I’d answer “nope,” I’d see eyebrows raised in a Maybe there’s hope for my guy yet manner. But when I answered “yes,” I’d typically get a quick nod communicating that the defense lawyer understood it would be all about negotiating a guilty plea from that point on.
Indeed, tapes are the prosecutor’s best friend — usually. But when Michael Cohen secretly recorded a phone call with his own client Donald Trump in September 2016, he created a piece of evidence that could become a key part of Trump’s defense in his ongoing criminal trial in Manhattan.
It’s not all bad news for the prosecutors, of course. The tape confirms an important pillar of the district attorney's case: Trump plainly knew about and approved of hush money payments to women with whom he had allegedly had sexual dalliances years before. But that was never seriously in dispute. Trump’s lawyer conceded as much during his opening statement.
Remember that the crime here is not payment of hush money — it’s falsification of business records around those payments to evade campaign-finance laws. The crime, in other words, lies in the accounting behind the hush-money payments. And Cohen’s tape casts doubt on a central element that the prosecution must prove to the jury beyond a reasonable doubt: that Trump was involved in the fraudulent scheme to structure reimbursements to Cohen to make the hush-money payments look like legal expenses.
Let’s set the scene for Cohen’s recording of Trump. It’s September 2016, two months before the election. Cohen decides — for reasons that remain unclear but surely will be explored in depth when he testifies — to record a phone call with Trump without Trump’s knowledge. While it wasn’t illegal for Cohen to record his client, it was bizarre and brazenly unethical. Ask any defense lawyer whether he’s ever secretly recorded a client and watch him respond like you’ve just asked whether he ever ate a banana with the peel on. He’ll be more confused than offended. Why would anyone do that? Perhaps tellingly, Cohen never voluntarily came forward with the recording. Rather, the FBI seized it from his office when they executed a search warrant in 2018.