Published by The Lawfare Institute
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Note: Listen to a bonus edition of the Lawfare Podcast featuring Michael Cohen’s Wednesday testimony—with no bull.
The first thing to remember about Michael Cohen’s lengthy appearance on Wednesday, Feb. 27, before the House Committee on Oversight and Reform is that it was presumably a pale shadow of the full testimony Cohen could offer. The president’s former lawyer spent Tuesday testifying behind closed doors at the Senate Select Committee on Intelligence; Sen. Susan Collins told reporters that he seemed like “a very different guy” compared to his previous appearance before the panel. And he will spend the day on Thursday at a closed hearing of the House Permanent Select Committee on Intelligence. What became public on Wednesday was just the slice of Cohen’s story that is not currently at issue in Robert Mueller’s investigation of L’Affaire Russe, the subject of separate investigation in the Southern District of New York, or of concern to the intelligence committees.
In other words, Cohen’s testimony, both written and live, is not the whole story. It may well not be the most important parts of his story. It is only the most currently presentable parts of Cohen’s story.
The second notable feature of the hearing was that it was really two hearings. One was a sometimes frustrating, sometimes incompetent, sometimes serious effort to learn what the committee could about the conduct of the man who currently serves as president of the United States. The other hearing alternated in five-minute increments with the first but was a different exercise entirely. It involved a confrontation between a man who had devoted a decade of his life to making Trump’s legal, ethical and personal problems go away—a man who once reveled in being dubbed Trump’s “fixer”—yet who now had become one of those problems, and was being confronted by a phalanx of 17 applicants for his old role.
Indeed, with the notable exception of Rep. Justin Amash, who engaged in a serious colloquy with Cohen about how Trump communicates indirect orders to his subordinates, none of the Republican members of the committee showed any serious interest in developing the factual record about the president’s conduct: not on matters related to L’Affaire Russe, not on payments to paramours, not on other corruption matters. They showed up, rather, as fixers—very much as Cohen himself would only recently have done. They were there merely to discredit the witness. And in this project they confronted a problem: It is actually hard to brand someone as a liar when he walks in, having recently pleaded guilty to any number of lies, and brands himself as a teller of untruths. There’s not much you can say about such a person that he hasn’t just said about himself.
This didn’t stop members from trying. They berated Cohen. They declared him not credible. They attacked the committee majority for having a witness who would soon go to prison for lying to Congress. And they almost entirely refused to engage the substance of what Cohen was saying. But at the end of the day, the spectacle this generated had changed very little. Cohen was saying the things he was saying; he still had the documents he had brought. And the man about whom he was talking was still of a character that lent credence to his allegations. Despite the spectacle, Cohen’s testimony revealed a lot.
Checks and Balances
The most damaging aspect of Cohen’s testimony for Trump concerned the president’s involvement in two offense patterns to which Cohen has pleaded guilty. The first of these was Trump’s involvement in the payments Cohen coordinated to Stephanie Clifford (better known as Stormy Daniels) and Karen McDougal—the matter regarding which Cohen originally pleaded guilty in the Southern District of New York on charges of campaign finance violations. Prosecutors have already alleged that Cohen “acted in coordination with and at the direction of” Trump himself in making those payments. But Cohen’s testimony provided unmistakable evidence of direct, personal involvement by Trump in the scheme—first as a presidential candidate and, perhaps most significantly, continuing months after he swore the oath of office.
Cohen testified in response to questions by Rep. Katie Hill that he received payments over the course of 2017, drawn either from Trump’s personal account or from his trust account. He promised that he could provide copies of all checks to Congress. Along with his written testimony, he included a copy of a check Trump had written him from his personal bank account reimbursing Cohen for the Daniels payments—from August 2017, well into Trump’s presidency. He also included a check from the trust account dated to March 2017, which Cohen identified to Chairman Elijah Cummings as signed by Donald Trump, Jr. and Trump Organization Chief Financial Officer Allen Weisselberg.
The timing of the checks is important for two reasons. The first is legal. Technically speaking, under federal election law, the balance Trump owed Cohen at any given time could constitute an ongoing illegal contribution by Cohen. Leaving aside the problem of indicting a president while he remains in office, any prosecutor seeking to bring a case against Trump would need to prove that he had “knowingly and willfully” violated the law, and that is far from clear. But it is noteworthy that the president’s potential criminal exposure in the Daniels and McDougal matter now extends beyond his time as a private citizen into his tenure as a public official.
On this note, Cohen’s opening testimony describes an exchange with Trump in the Oval Office in February 2017 in which Trump assures him that his reimbursement checks are on their way: “They were FedExed from New York,” Cohen paraphrases him as saying, “and it takes a while for that to get through the White House system.” In other words, the president of the United States was signing those checks—made out to his personal fixer in exchange for paying off two women for their silence regarding sexual relationships with him—in the White House itself.
This points to the second reason why the timing is important. Cohen’s testimony makes clear that the president repeatedly lied to the American people and made efforts to ensure the public would not find out the truth. After signing some of those checks to Cohen in the White House, Trump told reporters on Air Force One that he knew nothing about the Daniels payment in April 2018. In an exchange with Hill, Cohen said that Trump had called him just two months earlier, in February 2018, to ensure that Cohen would tell reporters that Trump had had no knowledge of or involvement in the reimbursements or Cohen’s original payments to Daniels. This systematic deception may not be a legal problem for the president, but it is a moral affront and a breach of his responsibility as the leader of the country.
The second area involves Cohen’s allegation that Trump indirectly encouraged him to lie to Congress about the abortive Trump Tower Moscow project—the subject of Cohen’s second guilty plea, this time to the special counsel’s office. This was the subject of the BuzzFeed News story alleging that Trump personally directed Cohen to lie to Congress about the date the Moscow project was terminated in order to hide Trump’s involvement. That story caused a fracas when Mueller’s office broke its customary silence to issue a rare statement denying unspecified aspects of the story: “BuzzFeed’s description of specific statements to the Special Counsel’s Office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s Congressional testimony are not accurate.”
Cohen’s testimony begins to square this particular circle, claiming that Trump made his desire clear without explicitly “directing” Cohen to lie, and that Cohen followed what he took to be an instruction. In his prepared statement, Cohen says that Trump had made clear to him over months what the party line was—saying to him that there was no business in Russia even as he supervised Cohen’s efforts to build a tower there. Moreover, Cohen writes, “Mr. Trump’s personal lawyers reviewed and edited my statement to Congress about the timing of the Moscow Tower negotiations before I gave it,” referring to the August 2017 letter Cohen submitted to the House and Senate intelligence committees, which contained the false assertion that the negotiations ended in January 2016. Cohen continues, “Mr. Trump had made clear to me, through his personal statements to me that we both knew were false and through his lies to the country, that he wanted me to lie” about the duration of the Trump Tower Moscow negotiations. “And he made it clear to me because his personal attorneys reviewed my statement before I gave it to Congress.”
Speaking at the hearing, Cohen told Rep. John Sarbanes that Trump’s lawyers had access to Cohen’s statement to Congress circulated because of Cohen’s joint defense agreement with Trump, but said that he couldn’t recall the nature of the edits. He identified both Trump’s personal lawyer Jay Sekulow and Jared Kushner’s lawyer Abbe Lowell as having reviewed the statement, and told Rep. Jamie Raskin that review by the president’s team led to changes in “how we were going to handle that message, … the length of time that the Trump Tower Moscow project stayed and remained alive.” He said he would try to provide the committee with an original draft of his statement from before the edits.
Notably, Sekulow contested Cohen’s testimony, saying in a statement that “[t]oday’s testimony by Michael Cohen that attorneys for the President edited or changed his statement to Congress to alter the duration of the Trump Tower Moscow negotiations is completely false.”
But there’s another element of Cohen’s testimony: He also stated during questioning by Rep. Gerry Connolly that he and Sekulow met with President Trump and specifically discussed the statement and impending testimony before the House intelligence committee. What did the president say? “He wanted me to cooperate. He also wanted just to ensure by making this statement—and I said it in my testimony—there is no collusion. There is no deal. He goes, ‘It’s all a witch hunt.’”
“At the end of the day, I knew exactly what he wanted me to say,” Cohen testified.
In other words, if Cohen is telling the truth, the president encouraged his false statements both in the general sense that he articulated the lies that became the party line Cohen was meant to represent and in the more specific sense that he met with Cohen in the run-up to the statement and testimony, reiterated the false party line, and then had his attorneys review and refine Cohen’s statement to help reflect that line.
Cohen’s testimony also produced two other additional insights on L’Affaire Russe—one more significant than the other. The more significant one is that Cohen declared in his opening statement that Trump “knew that Roger Stone was talking with Julian Assange about a WikiLeaks drop of Democratic National Committee emails” during the summer of 2016. As Cohen wrote:
In July 2016, days before the Democratic convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speakerphone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange and that Mr. Assange told Mr. Stone that, within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton's campaign.
Mr. Trump responded by stating to the effect of “wouldn’t that be great.”
This story, if true, is the first allegation that connects Trump personally to the efforts of his campaign and on the fringes of the campaign to benefit from Russia’s email theft. It has always been unclear how much Trump was personally aware of during the campaign of Russian outreach: not only Roger Stone’s outreach to WikiLeaks, but also the Trump Tower meeting and foreign policy aide George Papadopoulos’s knowledge of Russian “dirt” on Hillary Clinton in the form of “thousands of emails.” There has been plenty of speculation about how much the candidate knew. Cohen told Rep. Peter Welch that he was unaware of whether Trump or Stone knew where the emails came from, although the Washington Post had reported the previous month—and the media had covered widely since—that the Russians had stolen them. But Cohen’s testimony represents a direct allegation that Trump was aware that WikiLeaks was intending to release damaging material on Clinton before that material became public and was aware of contact between his campaign hangers-on and WikiLeaks on the subject.
The timing is also noteworthy. Cohen estimated that the call took place on July 18 or 19 of 2016—which would place it just a few days before WikiLeaks released the emails hacked from the DNC on July 22. A week later, Trump would declare at a campaign event, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” It is also consistent with paragraph 11 of the Roger Stone indictment, which states that “in or around June and July 2016, Stone informed senior Trump campaign officials” of his information on WikiLeaks’s plans.
It’s unclear what the legal significance would be of Cohen’s story—if any. For one thing, it would be hard to prove, being an anecdote told by a convicted liar about another person charged for lying and a person who is famously disengaged from the truth. Cohen testified that there was no one else in the room during Stone’s call, though Trump’s secretary Rhona Graff allegedly patched the call through. Moreover, even if true, it’s not clear that the story involves anything illegal. After all, it’s not illegal to have advance knowledge that WikiLeaks is planning a release of something that was previously stolen.
Unless, that is, you happen to tell a federal investigation that no such conversation took place. According to CNN several months ago, Trump said in his written answers to questions from the special counsel’s office that Roger Stone had not told him about any communications with WikiLeaks. Notably, CNN also reported that before Trump submitted his answers, Mueller requested call logs from Stone to Trump Tower—which presumably would show Stone’s call on July 17 or 18.
Whether or not it suggests criminality, the incident—if true—is narratively significant in fleshing out the picture of Trump’s supposed knowledge of Russian outreach, and it is morally significant in that it underlines how little the highest levels of the Trump campaign cared about the provenance of the help it received. Whether it was illegal or not, it was a kind of collusion—coordination on damaging Trump’s opponent with an organization working hand in glove with a hostile intelligence service. Cohen testified that Trump had never expressed any sense that what Stone had done was wrong, nor had he suggested that they should contact the FBI in the wake of Stone’s revelations.
The final aspect of Cohen’s testimony related to L’Affaire Russe is more attenuated. He describes an incident in “early June 2016” in which Cohen saw Donald Trump, Jr. walk behind his father’s desk and tell him, “The meeting is all set.” Cohen reasons—based on Trump’s control over the campaign, Donald Trump, Jr.’s deference to his father, and the fact that “Mr. Trump had frequently told me and others that his son Don Jr. had the worst judgment of anyone in the world”—that Trump, Jr. must have been coordinating the Trump Tower meeting.
If Cohen’s assumption were proved true, this would be explosive. But it is even in Cohen’s account an assumption—one for which there is no evidence beyond the assumption. Perhaps unsurprisingly, Cohen faced relatively few questions about this aspect of his written testimony during the hearing.
Even where Cohen does not implicate the president in illegality, his account of Trump is relentlessly unflattering. There’s the allegations of racism. There’s the supposed absence of substantial medical records regarding the president’s alleged bone spurs, which had served as his justification for avoiding the Vietnam draft. Cohen even testified about threatening Fordham University to never release the president’s grades and SAT scores.
Are there any positive aspects of Cohen’s testimony for the president? Sort of. At no point, to be sure, does Cohen’s testimony “totally clear the president,” as Trump once tweeted. But it does clear away some lingering and unpleasant questions. In response to a question from Rep. Raskin about any videotapes that could expose the president to “extortion or blackmail,” Cohen responded that he has “no reason to believe that that tape exists”—presumably referring to the sexual tape described in the Steele dossier. Cohen likewise flatly denied the allegation that he met with Russian operatives in Prague during the summer of 2016.
He also put the kibosh on two other salacious stories that have hovered around the Trump presidency. First, he denied that Trump had fathered an illegitimate child, a rumor that American Media, Inc. CEO David Pecker paid $15,000 to “catch-and-kill.” Second, he directly addressed rumors of video showing Trump assaulting his wife Melania in an elevator, which, the rumor goes, was ostensibly was put up for auction. “I don’t believe that auction was real,” Cohen said, saying that he knew people who had unsuccessfully sought to purchase it, “and I don’t believe that Mr. Trump ever struck Mrs. Trump, ever.”
One of the most important features of any investigative hearing is the degree to which it can open up new leads and generate new potential witnesses. In this regard, Cohen’s testimony was a kind of gold mine for the committee. In addition to the Daniels and McDougal payments and L’Affaire Russe, Cohen’s testimony identified a number of other potential areas of legal concern for the president. Most notably, in response to a question from Rep. Raja Krishnamoorthi about what the president told him the last time the two communicated directly, in the fall of 2018, Cohen declared that he could not answer two questions because it bore directly on an ongoing investigation by the U.S. Attorney’s Office for the Southern District of New York. When Krishnamoorthi asked what other “wrongdoing or illegal act[s]” Trump may have committed, Cohen added that this question bore on the same investigation.
There are other areas too. Cohen also testified that Trump exaggerated his own worth in an effort to obtain a loan from Deutsche Bank, that he similarly over- or under-represented his assets for insurance and tax purposes, and that he used funds from his charity to purchase a third portrait of himself (the purchases of the first two portraits had already been reported by the Washington Post). All of these could give rise to further hearings or investigations.
The committee will also not lack for witnesses—although Cummings has said he plans to proceed “very cautiously” in this investigation out of concern for not compromising criminal probes. Under questioning both from Cummings and from Rep. Carolyn Maloney, Cohen specifically flagged the role of Trump Organization Chief Financial Officer Allen Weisselberg’s role in the payments to women. Cohen testified that he and Weisselberg left Trump’s office in order to discuss the details of precisely how to repay Cohen for the money he would pay to Stephanie Clifford. Cohen’s testimony in response to Maloney’s questions was very specific; he said that he and Weisselberg explored several ideas, including putting money in the “IOLA” (Interest on the Lawyer’s Account) account, or sending the funds to Keith Davidson, or having Cohen obtain payment from someone who wanted to have a party at one of Trump’s clubs or wanted to join one of Trump’s golf clubs. When Maloney asked Cohen whom he thought the committee should talk to about “catch-and-kill” and payments to individuals prior to the 2016 presidential election, Cohen specifically indicated that the committee should talk to David Pecker, Dylan Howard, and Barry Levine of American Media, Inc., as well as Allen Weisselberg and Alan Garten (executive vice president and chief legal officer at the Trump Organization). In discussing allegations of insurance fraud, he mentioned two other names, in addition to Weisselberg, in an exchange with Alexandria Ocasio-Cortez: Matthew Calamari and Ron Lieberman.
The bottom line is that Michael Cohen’s testimony was informative and useful. People will have to make their own credibility judgments about the man. Some of what he said can be corroborated or refuted by others. Some of what he said has varying degrees of documentary support. Some of it, however, rests only on the word of a disbarred lawyer who is headed to prison soon for, among other things, lying. That is shaky ground. But here’s the thing: If a congressional committee wants to understand the conduct of the president of the United States, are there better options?
Editor's note: This post originally stated that the checks Cohen provided to Congress showed reimbursements for his payments to both Daniels and McDougal. In fact, the checks only constituted reimbursements for payments to Daniels.