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Law & the Courts

A Michael Cohen Preview: How To Evaluate a Known Liar’s Testimony

Michael Cohen arrives to testify behind closed doors before the Senate Intelligence Committee, February 26, 2019. (Jonathan Ernst/Reuters)

Given the sheer number of liars who populate the Trump/Russia controversy, I should have written this post sooner, but after the public response to Andrew McCabe’s interviews — with partisans on both sides fully crediting the statements that supported their underlying arguments — and with known liar Michael Cohen finally delivering public testimony tomorrow, it’s better late than never. As a former litigator who has questioned more than my share of lying witnesses, I humbly offer some guidance for evaluating tomorrow’s testimony.

1. Corroboration is key. This is the most obvious point. As Cohen testifies, his credibility increases when he can support his story with documents, with recordings, or even with other witnesses. If anyone else is willing to testify under oath in the same way to the same events, then Cohen’s words take on new importance. His narrative is only as compelling as his corroboration.

2. Don’t believe your own discernment. The absolute worst thing anyone can do when confronting a witness is to believe they have some sort of special insight into who is truly “sincere” or “credible.” A man who has lied for a long time tends to be very good at lying, and the obvious giveaways or “tells” are more often the stuff of movies than real life. I’ve sat in depositions and watched a witness give a performance fit for awards season — only to see them reverse course quickly (and, again, convincingly) after being confronted with clearly contradictory documentary evidence.

3. Don’t entirely believe arguments based on perceived “incentives.” Already I’m hearing people say that Cohen will tell the truth tomorrow because he’s “trying to rehabilitate his image” or because “He’d be an idiot to risk more jail time.” Cohen is transitioning from Trump loyalist and fixer to hero of the Resistance, so there are incentives to lie or embellish — and criminals are just the kind of “idiots” who think they can get away even with the same crime they’ve committed before. Incentives matter, but they’re hardly dispositive, and don’t presume you know all the incentives in play.

4. Uncorroborated testimony, however, isn’t entirely worthless. It’s likely that Cohen will say a number of things that he can’t immediately corroborate. That doesn’t mean those statements are lies. He may well tell the whole truth and nothing but the truth tomorrow, so we shouldn’t discard his statements. But pay close attention — are the uncorroborated assertions the most sensational and interesting? Then I’m dubious. Are the uncorroborated assertions consistent in tone and nature with the rest of his testimony? Then I’m more curious. But no matter the nature of the testimony, file it away in your mind. Corroboration or rebuttal can come later, and from unexpected sources.

Given the necessity of corroboration to truly believe anything Cohen says, I’m not expecting any true blockbuster revelations tomorrow, but a blockbuster revelation is different from a blockbuster assertion. We may get one or two of those. Use caution. I expect tomorrow’s testimony to produce more heat than light.

Something to Consider

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David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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