Law & the Courts

Takeaways from the House Democrats’ Cohen Hearing

Chairman of the House Committee on Oversight and Reform Elijah Cummings (D., Md.) in Washington, D.C., February 27, 2019. (Joshua Roberts/Reuters)
It was cinéma not so vérité.

‘Lanny Davis Productions.” That should have been the credit on this week’s big Michael Cohen drama. It’s a better fit than “House Oversight Committee.”

Knowledge may be power, but electoral victory is subpoena power. That’s of more practical use when the objective, under all the chatter about “collusion” and impeachment, is to render Donald Trump unelectable. Expect another 18 months of this.

The Democrats are entitled to the spectacle orchestrated Wednesday by Chairman Elijah Cummings and Cohen lawyer (and, not coincidentally, sharp Democratic strategist) Lanny Davis. They won the midterm elections, not just fair and square but going away. The spoils that go to the victor include the authority to compel the appearance of witnesses who will support the 2020 narrative: Trump as “racist, conman, and cheat,” the theme of Cohen’s opening statement — which we may suspect the rough-edged, ambulance-chaser-turned-wannabe-Trump-bullyboy had just a tad of Lanny’s help writing. Chairman Scorsese, um, I mean Cummings, gave Cohen an extraordinary half hour to read it to America without interruption.

Republicans are not nearly as good at this stuff, mainly for reasons beyond their control. While in the House majority, they tried their best to put the Obama-legacy Justice Department and FBI under the microscope for politicization and abuses of power in the investigations that bore on the 2016 election. But the anti-Trump press didn’t care, which meant the public never heard much about it.

Then there’s the dirty little secret the GOP never mentions: The president could at any time have ordered investigative documents disclosed. He shrank from doing so, notwithstanding claims he and House Republicans made about how devastating the documents are. That obviously suggests one or more of the following: (a) the documents are not devastating evidence of misconduct; (b) revelation of the documents would be as unflattering to Trump as to the investigators (think about it: the FBI and DOJ were proceeding on the theory that a compromised Trump could be blackmailed by Putin, so what do you figure they wrote in their classified reports and FISA applications?); or (c) there is in place an understanding, perhaps tacit: Mueller will not find criminal “collusion” (even if his report is damning on the matter of Trump’s judgment), the president will not disclose documents (which could damage relationships with foreign intelligence services that abetted the Trump-Russia probe), and everyone will call a truce and lick their wounds (while House Democrats use their subpoena power to keep the narrative chugging — with corruption substituted for collusion).

As Democrats are showing, “oversight” is fun when the press is the breeze at your back.

In this instance, it was irresponsible fun.

The president was conducting important diplomacy in Vietnam. Now, I happen to think the North Korea gambit is a farce; every national-security-minded conservative would be rebuking it, the way we rebuked Obama’s dangerous Iran deal, if it were a Democratic president granting the prestige of a visit to a barbaric, anti-American, tin-pot dictator.

That said, Trump is president and he was trying, however unrealistically, to get Rocket Man to denuclearize. Didn’t Congress owe him a couple of days of quiet support to try to strike a deal? Instead, subordinating the national interest to their political strategy to render Trump unelectable, Democrats gratuitously created a scandalous distraction: a hearing about the president’s character, starring a scoundrel — the president’s own scoundrel, to be sure — who has recently pled guilty to lying to Congress.

As Rich Lowry and I discussed on the McCarthy Report podcast, this hearing could have been held at any time. In fact, it had already been postponed more than once. Yet Democrats insisted it had to be Wednesday. No president, of either party, should be unnecessarily undermined when he is overseas pursuing what the country overwhelmingly agrees is a vital American interest (as a non-nuclear NoKo would be). Trump is not going to be president forever. Democrats will regret shredding norms of good governance in their zeal to be rid of him.

In any event, here are my takeaways from the Cohen hearing.

1. Nothing New
Anything that sounded incriminating but that you hadn’t heard before is irrelevant. Remember, Cohen has been extensively debriefed by two sets of highly skilled prosecutors and FBI agents. If he said something new and inculpatory at the hearing, something you had never seen mentioned in an indictment from either the Mueller probe or the Southern District of New York (SDNY) investigation, that means the investigators either didn’t believe Cohen or couldn’t verify what he said. With Cohen, corroboration is essential in light of his galactic credibility problems, which — though I would not have thought this possible — have actually gotten worse since Wednesday’s hearing.

2. The Stone-WikiLeaks Tale
Point 1, above, goes double for Cohen’s breathless tale about Roger Stone calling the president a few days before the Democratic convention. With Cohen listening in, Stone supposedly reported that he had personally spoken with Julian Assange and that WikiLeaks was about to leak the hacked DNC emails.

Put aside that, even if this story were true, it would indicate Trump had no knowledge or participation in the Russians’ hacking of the DNC servers and transmission of the emails to WikiLeaks (i.e., there would be no criminal conspiracy). The story is almost certainly not true. It is not just that Mueller did not include it in his indictment of Roger Stone (even though prosecutors were manifestly straining to tie Stone to Assange). Mueller’s narrative in the Stone indictment cannot be squared with Cohen’s account.

According to Mueller, days after the DNC emails began being published, Stone reached out to Jerome Corsi to urge him to figure out a way to contact Assange; he wanted Corsi to find out whether WikiLeaks had a tranche of stolen Clinton Foundation emails ready for release. If, as Cohen claims, Stone already had both a direct line of communication with Assange and foreknowledge of what WikiLeaks was in a position to publish, why would he have needed to implore Corsi, of all people, to try to make contact with Assange? If Assange was already telling Stone what WikiLeaks had, why would Stone have been scratching his head about whether Assange had Clinton Foundation documents? (WikiLeaks apparently did not have such documents — or at least never released them.)

Despite the imposition of a judicial gag order in his case, Stone released a brief statement claiming Cohen’s account was false. Maybe Lanny can stage a debate on MSNBC: Cohen v. Stone! We’ve come a long way from Lincoln and Douglas, no?

3. Is Cohen Cooperating in an Undisclosed SDNY Investigation of Trump?
If he is telling the truth, Cohen is still working with SDNY prosecutors on an investigation of Trump for an undisclosed crime. When asked if he was aware of any criminal activity by the president that he had not already publicized, Cohen said yes, but refused to elaborate, citing an ongoing SDNY investigation he claimed to be helping.

This is intriguing for more than the obvious “what’s the crime?” reason. In their sentencing memorandum in Cohen’s case, the SDNY was emphatic that Cohen was not a cooperating witness. Prosecutors said he had withheld information (and was still lying about and minimizing his tax and bank fraud offenses), and that he deserved to go to jail.

So has that changed?

We don’t know. Committee Republicans spent hours tendentiously pressing Cohen on whether he had a book or movie contract, but no one bothered to ask him whether he has a contract with the government — i.e., a formal cooperation agreement with the SDNY. Would have been nice to know.

Cohen seems to think he will get a second bite at the cooperation apple. Under federal criminal-procedure rules, prosecutors have up to a year after a person is sentenced to file a motion for reduction of that sentence based on substantial assistance to an investigation or prosecution. Recently, the SDNY quietly agreed to a two-month postponement (to May 6) of Cohen’s date to begin serving the three-year sentence imposed in December. Publicly, the delay was rationalized as a routine granting of Cohen’s request to complete a course of physical therapy following recent shoulder surgery. Is more than that going on here?

4. SDNY Obstruction Investigation?
While Cohen did not disclose the mystery crime he says the SDNY is investigating, he implied that it could involve obstruction. He refused to say for sure, claiming to be protecting the integrity of the SDNY’s investigation. Specifically, he declined to describe conversations he had with the president after the FBI executed search warrants at Cohen’s office and residences. There is nothing necessarily sinister about such conversations . . . unless people are trying to concoct false exculpatory stories about any incriminating evidence seized. But without more information, we can only guess.

5. Trump’s $35,000 Check Payable to Cohen
There was a stir in the hearing room when Cohen revealed his copy of a $35,000 check that President Trump signed and gave to him in partial reimbursement of the Stormy Daniels hush-money payment. Cohen also displayed a second check for the same purpose, which he says was co-signed by Don Trump Jr. and another Trump-organization executive.

At this late stage, this is more of a political than a legal problem for the president. Remember Point 1, above: The prosecutors know all this information already. The SDNY undoubtedly acquired copies of the checks (there are said to be eleven of them) months ago. The payment arrangement is key evidence regarding the campaign-finance charges to which Cohen has pled guilty — charges that could eventually be brought against the president. This is not new information: Investigators know that Cohen paid Daniels, then Trump and his company disguised the reimbursement to make it look like monthly payments on a lawyer’s retainer, paid out over a year.

Politically, however, the check Trump signed is new damage for the president because he publicly insisted that he did not know anything about Cohen’s payment to Daniels. I doubt it is too terribly damaging, since (a) Trump says lots of things that are not, shall we say, well, accurate, and (b) I don’t know anyone who believed Trump did not know about the Cohen–Stormy payoff. (I don’t mean to imply that the tawdry behavior these shenanigans were meant to conceal is inconsequential — that damage is real, the sort of thing that turns off all but Trump’s most ardent supporters.)

6. Did Trump File a False 2017 Financial-Disclosure Form?
The way it was structured, the reimbursement of Cohen creates other legal peril for the president as well. The question is whether he filed a false public financial-disclosure form. The 2017 form Trump submitted before Cohen was fully repaid does not disclose the debt — although the president’s 2018 form obliquely records that the debt was repaid. The Office of Government Ethics (OGE) has referred the matter to the Justice Department. OGE’s website notes that the Justice Department has discretion to prosecute criminally or file a civil action against an official who knowingly and willfully fails to report required information.

7. Knowledge of, and Failure to Correct, Cohen’s Perjured Testimony
Cohen’s claims at the hearing potentially turn up the heat not only on the president but on two of his children, Don Jr. and Ivanka, as well as their lawyers.

Cohen claims that he consulted with the president and his very fine attorney, Jay Sekulow, before his August 2017 congressional testimony about Trump Tower Moscow — the testimony over which Cohen has pled guilty to perjury. Cohen does not claim the president instructed him to lie . . . at least directly. He says the president uses “code.” Lest you think cryptanalysis is one of Cohen’s many, er, talents, the “code” is of the familiar Henry II “Will no one rid me of this turbulent priest?” variety — i.e., Trump riffs that there is “no Russia,” “no collusion,” no whatever, and his subordinates are said to take that as their cue to deny, deny, deny.

More thorny is the letter that Cohen submitted in conjunction with the August 2017 testimony. Cohen says that before submitting it to the committees, he reviewed it with Sekulow and Abbe Lowell, a terrific criminal-defense lawyer who represents Don Jr. and Ivanka. This consultation apparently took place under the auspices of a “common interest” or “joint defense” agreement. These arrangements enable people who are under investigation to pool information with all their lawyers, with all the communications protected by attorney-client privilege. What piqued many people’s interest was Cohen’s claim that his testimony was “edited” by the lawyers, which Sekulow vehemently denies.

Sometimes a transcript does not do a hearing justice — you have to see and hear the exchanges. Yes, the word “edited” was used, and it can have a sinister connotation in this context; but having watched the hearing, I did not think it was a big deal at the time. I did not take Cohen to be alleging that the lawyers significantly altered his letter, that they changed its substance in any meaningful way. It sounded, instead, like the lawyers did what lawyers do: a tweak here or there, not to distort the client’s account but to protect the client from inadvertent error.

Admittedly, I am not impartial. I am confident neither Sekulow nor Lowell would suborn perjury. In any event, though, I believe that by focusing on the word “edited,” commentators are missing what actually is significant about the letter.

Cohen falsely asserted in the letter that negotiations over Trump Tower Moscow ended in January 2016. When he pled guilty to perjury, he conceded that the negotiations went on long after that, and that he had reported on the negotiations to candidate Trump and his “family members” many times over many months. Presumably, “family members” refers to the adult Trump children, who are executives of the Trump organization.

The two lawyers who reviewed the letter were aware that Cohen claimed the negotiations ended in January. The lawyers, of course, are agents of their clients — President Trump, Don Jr., and Ivanka. Therefore, at least implicitly, all three Trumps knew, through their lawyers, that Cohen told Congress the negotiations ended in January. (Again, pooling information is the main reason to have a common interest agreement.)

If the three Trumps knew that, it is reasonable to infer that they knew Cohen’s Trump Tower Moscow testimony was false. Cohen now says President Trump, Don Jr., and Ivanka are well aware that the Trump Tower Moscow negotiations continued for several months after January. On this, I’m inclined to believe Cohen. In the criminal information Mueller filed against Cohen, prosecutors allege that there were many post-January discussions about the project among Trump-company executives. The prosecutors would not have done that unless they had corroborated Cohen, so there must be a corporate paper trail. Plus, the president’s legal team has admitted that the Trump company’s deliberations over Trump Tower Moscow went on well into the 2016 campaign. If the president and his two adult children knew that Cohen testified falsely, that is a problem: Until Cohen pled guilty in November 2018, no one ever took steps to correct the record — Congress was misled for over a year.

8. Prague Meeting, and the Criminal “Collusion” Narrative, Debunked
On the positive side of this dreary day for Trump world, Cohen was adamant that he never traveled to Prague on Donald Trump’s behalf to meet with Russians (he says he has never even been in the Czech Republic). Cohen’s phantom Prague trip is a central allegation in the Steele dossier’s faux intelligence reporting about an espionage conspiracy between the Trump campaign and the Kremlin.

Clearly, we already knew that there was no Prague meeting, notwithstanding a media frisson some months back over a rumor that Mueller had found evidence that it had happened. Had Mueller been able to prove the Prague allegation, that would have been seen as solid corroboration of the Steele dossier. The trajectory of the investigation would have been completely different: The special counsel would be revved up, not winding down.

9. Cohen a Lose-Lose for Republicans
Alas, this elucidated the impossible challenge for committee Republicans at Wednesday’s hearing. They did not feel confident enough to defend the president on the substance of Cohen’s claims — they don’t know what will turn out to be true, so they don’t want to go out on that limb. They played it safe: Cohen is an inveterate liar who has pled guilty to nine counts of fraud and perjury, including lying to Congress; therefore, nothing he says can be believed. But of course, Cohen actually said a number of things that were exculpatory of Trump, especially in discrediting the collusion narrative. So . . . which is it, GOP? “You can’t believe anything he says,” or “You can’t believe him except when he says things that help the president”?

There is no way to square this circle. When Cohen portrayed the president as a roué, it directly hurt Trump. When Republicans landed blows establishing that Cohen is a five-alarm fraudster with a thuggy extortionate streak, it reminded everyone that Trump chose Cohen to be his fixer, and, finding his skill set useful, kept him on for a decade.

Hat tip to Lanny . . . he knows a can’t-miss script when he sees one.


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