"Weirdest moment": Experts call out Trump lawyers' "planted evidence" defense over damning recording

The Trump team's latest defense tactic is "the last refuge of a scoundrel," says ex-prosecutor Andrew Weissmann

By Charles R. Davis

Deputy News Editor

Published May 3, 2024 10:11AM (EDT)

Donald Trump (Photo illustration by Salon/Getty Images)
Donald Trump (Photo illustration by Salon/Getty Images)

The audio recording that jurors heard Thursday lays it all out: There is then-candidate Donald Trump, in September 2016, talking about a hush payment with his former fixer, Michael Cohen, including the amount and how the Trump Organization would facilitate the whole thing.

"We'll have to pay," Cohen can be heard telling Trump, who responds by discussing whether they should "pay with cash." The president's former personal attorney, now a star witness for Manhattan District Attorney Alvin Bragg, goes on to say he's gone over the deal — to buy the silence of Playboy model Karen McDougal, who alleges she had an affair with the Republican candidate — with Trump Organization chief financial officer Allen Weisselberg on "how to set the whole thing up."

"What do we got to pay for this?" Trump responds. "One-fifty?" (The parent company of the National Enquirer paid McDougal $150,000 for the rights to her story).

In another recording, Cohen can be heard discussing a separate, $130,000 hush payment to Stormy Daniels with the adult film star's attorney, Keith Davidson. “I can’t even tell you how many times he said to me, you know, I hate the fact that we did it,” Cohen said on the call, referring to Trump.

As prosecutors tell it, the recordings show that Trump was intimately involved in the scheme to "catch and kill" potentially damning stories about him — and that Cohen wasn't just acting on his own. Trump has been charged with 34 felony counts of falsifying business records to evade campaign finance laws and cover up a the hush payment to Daniels; in 2018, Cohen was sentenced to three years in prison after confessing to his own role in the alleged conspiracy.

For Trump's defense team, a priority has been undermining the credibility of Cohen, who they paint as a perjurer acting out of bitterness that he didn't get a job in the Trump administration.

But how can you argue with a recording? By trying to undermine its credibility, too.

That's exactly what Trump defense attorney Emil Bove tried Thursday. During a cross examination of Douglas Daus, a forensic data expert for the Manhattan DA, Bove appeared to be trying to suggest that the 2016 Trump-Cohen recording may have been altered, zeroing in on the fact that the phone containing the recording had first been obtained by the FBI.

"There is at least ... a risk that a prior acquisition and extraction could impact the data that you looked at in 2023, isn't there?" Bove asked. "And you didn't talk to the FBI about the methods they used, did you?"

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Undermining the credibility of damning evidence is what defense lawyers are paid to do. But the insinuation that the FBI might have mishandled the data in question, in such a way as to effectively frame a former president, plays into conspiracy theories on the right, where — particularly since the Jan. 6 insurrection and subsequent arrest of hundreds of its participants — a bureau led by a Trump appointee is said to be a mere arm of the liberal deep state.

To MSNBC legal analyst Lisa Rubin, the exchange between Trump's defense team and the data forensics expert was the "weirdest moment" of Thursday's testimony. Daus, she wrote on social media, "struck me as knowledgeable, earnest, and honest." But "for a defense looking to sow seeds of mistrust — and in need of only one juror — even that guy is ripe for a brutal cross," she continued, highlighting Bove's suggestion that the recordings "could have been manipulated and/or deleted by the FBI."

Former U.S. attorney Joyce Vance said the exchange actually revealed Trump's lack of a good defense. "The 'they planted evidence' defense, especially in a white collar crime case is such a tell," she posted on social media, noting that Trump also deployed it after the FBI raided Mar-a-Lago and found top secret national security documents. "It's spaghetti thrown at the wall. If there was anything to it, Trump would have his own forensic experts to say so."

Andrew Weissmann, a former federal prosecutor who worked for special counsel Robert Mueller, was even more harsh in his assessment of Trump's legal strategy. "The 'someone planted the evidence' defense," he wrote, "is the last refuge of a scoundrel."

By Charles R. Davis

Charles R. Davis is Salon's deputy news editor. His work has aired on public radio and been published by outlets such as The Guardian, The Daily Beast, The New Republic and Columbia Journalism Review.

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Alvin Bragg Andrew Weissmann Donald Trump Douglas Daus Emil Bove Joyce Vance Lisa Rubin Michael Cohen