In Michael Cohen’s testimony before Congress today the gun wasn’t smoking, it was on fire. The president’s former personal lawyer directly implicated President Trump in: the WikiLeaks plot to distribute Democratic National Committee emails stolen by Russian intelligence officers; the porn actress payoff intended to influence the 2016 presidential election; bank fraud to get a Deutsche Bank loan, and lying to Congress about efforts to build Trump Tower Moscow.
Cohen’s testimony was the functional equivalent of a WWE body slam to Donald Trump, the Trump campaign and the Trump administration.
As House Democrats made mental notes of details they want to add to articles of impeachment that could self-generate from the rich pool of evidence, it’s no surprise Cohen’s testimony has been met with indignant pushback from the other side of the aisle.
Earlier this week, White House press secretary Sarah Sanders said it is “laughable” for anyone to believe Cohen because he is a “disgraced felon” and “convicted liar.” And, in a united front, GOP House members used their hearing time to undercut Cohen’s credibility, going so far as to chide him with “liar, liar, pants on fire.”
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As a news junkie, I get why the president and his minions are trashing Michael Cohen. As a citizen, I get why their efforts have some appeal. But, as a former federal prosecutor, I’m putting my hand on the lid of the can before it comes down on Michael Cohen’s head.
When I was litigating for the Department of Justice, in order to make it through the 70 hour weeks that come with a long trial, I used to make deals with myself. One of my deals was that on the Saturday night before my closing argument, I got a burger and fries for dinner, a hot fudge Sunday for dessert, and a movie as a distraction.
Upstanding citizens don’t participate in crimes
Early in my career, I went to Blockbuster and rented “Sister Act,” as my Saturday night movie. In “Sister Act,” Whoopi Goldberg and a convent of nuns bring down an organized crime ring. As I watched the movie, I remember thinking: “All my cases have bad guys as witnesses. Why don’t I ever get a case in which my witnesses are nuns . . . or teachers, or social workers, or any other upstanding citizen?”
Here’s why. Upstanding citizens do not participate in crimes. They can’t be a witness to something they know nothing about. The best witnesses to a criminal conspiracy are people who have been involved in the conspiracy. Yes, they are criminals. But, more importantly, they are eyewitnesses. And, an eyewitness like Michael Cohen was in the perfect position to personally observe the illegal activities of his co-conspirators, including his boss, Donald Trump.
Given his checkered past, it’s reasonable to view Cohen’s testimony with caution. But, what gets lost in the GOP effort to dismantle Cohen’s credibility is the fact that Cohen’s past only became checkered at the behest of, and for the benefit of, Donald Trump. For the past decade, as Trump’s lawyer, Michael Cohen lived his life to further Donald Trump’s financial, political, and personal interests.
Lying to Congress about Mr. Trump’s efforts to collect hundreds of millions of dollars from a foreign adversary while running for president, by building Trump Tower Moscow, had all the benefits going to Mr. Trump. Mr. Cohen’s lies simultaneously protected the president and guaranteed Cohen time in a federal prison.
Testimony can benefit Cohen and also be true
Creating a shell corporation, and secretly paying Stormy Daniels to keep quiet about her alleged affair with Mr. Trump, had all the benefits running to Donald Trump. Trump avoided another bullet to his already wounded evangelical base and took the presidency. For his efforts, Michael Cohen was indicted on campaign finance charges and is going to prison for it.
A typical criminal conspiracy has all co-conspirators profiting from the crime. Three people agree to rob a bank and the split the money three ways. So, when one robber testifies against another, he can plausibly be accused of shifting blame. Here, things are different. Given that the crimes Cohen testified about had all the benefits running to Mr. Trump, Cohen’s testimony that the crimes were committed at Trump’s direction, to benefit Trump, rings true.
To be fair, although Michael Cohen does not have a formal cooperation agreement with either Special Counsel Mueller or the Manhattan U.S. Attorney’s Office, he has offered informal cooperation to both and it’s reasonable to believe Cohen hopes his testimony will get him a reduced sentence.
This is normal. People involved in crimes rarely testify against their co-conspirators out of the goodness of their hearts. But, that does not mean what Cohen has to say is untrue. And, testifying falsely to Congress a second time would be the one way to ensure that prosecutors will not give Cohen any credit. So, he had an incentive to be truthful in Wednesday’s congressional testimony.
Republican focus on lies is ironic
Claims from Trump, Sanders, and GOP operatives that Cohen cannot be believed because he lied in the past are particularly ironic given the seemingly endless list of demonstrably false statements that have come from the president and his administration. Each day there are lies, and each day that follows Sanders takes the podium, and Trump takes to Twitter, with the expectation that people will judge the veracity of what they say anew.
I could incorporate the words “pot,” “kettle,” and “black” into a paragraph describing the hypocrisy of Trump’s finger pointing. But those who have not been implanted with the FOX News chip already know how the argument plays out.
In the end, people will have to look at all the facts surrounding Cohen’s testimony today to make their own conclusions about whether he is being truthful. But, remember, Mr. Trump hired Michael Cohen to do his dirty work. In the most basic sense, Trump selected Cohen as the best witness against him.
And what about the attacks from Trump and the GOP claiming that Michael Cohen cannot be believed because he’s done bad things? Prosecutors have a saying: Conspiracies hatched in hell don’t have angels as witnesses.
Michael J. Stern was a federal prosecutor for 25 years in Los Angeles and Detroit. Follow him on Twitter: @MichaelJStern1