Below is my column in The Hill newspaper on the implications of the testimony of Michael Cohen last week. This weekend, House and Senate Democrats publicly claimed to have evidence of obstruction and collusion, though the most important news is that all of the Committees are issuing a storm of subpoenas.
Here is the column:
In his testimony before the House Oversight Committee, Michael Cohen faced an obvious challenge as a convicted perjurer who was not just disbarred the day before but soon will be serving time for a myriad of federal crimes. Everything in Washington is relative, particularly truth.
Cohen, yet again, found a way to be useful in spite of himself. He was useful to Donald Trump and then later became useful to special counsel Robert Mueller. This time he was useful to majority House Democrats. He sprinkled apologies among gratuitous attacks on Trump and juicy stories of Trump mocking Vietnam veterans, getting Cohen to lie to the first lady, or rigging bids on his own portrait. All embarrassing details, but what makes for good television does not always make for good prosecutions.
But Cohen also offered an array of possible new criminal allegations against Trump. His testimony will not only afford a basis for issuing new subpoenas but also for expanding oversight investigations into Trump’s business practices. In other words, Cohen has found a home. In that, the Democrats appear to be following the approach of Franklin Delano Roosevelt who, when asked about his opposition to dictators around the world but his tolerance of Nicaragua’s ruthless Anastasio Somoza, replied, “Somoza may be a son of a bitch, but he’s our son of a bitch.”
Democrats, however, should keep in mind that the guiding strategy with Cohen is “caveat emptor,” or “buyer beware.” Cohen is facing scrutiny over his surprising claim that he had no interest in a White House job and turned one down because he wanted to remain private counsel, which is directly contradicted by reports and alleged to be a new act of perjury.
His testimony was often short on details, and much of the information was already known or not cognizable crimes. Much was based more on his suspicions than his knowledge and, worse yet, his veracity. Like his sense of legal ethics, there may be less than meets the eye in the sensational appearance of Cohen. Here is an initial appraisal of what he brought to the table here, from the weakest to the strongest criminal allegations.
As I have previously written, Cohen has always been a greater threat to Trump than the Russian collusion allegations being investigated by the special counsel. Indeed, the hearing spotlights how the original collusion allegations have receded in importance. Cohen admitted that he does not have evidence of collusion and offered nothing that helped substantiate it.
One of his “bombshell” allegations was that Roger Stone phoned Trump to tell him that Stone had spoken with WikiLeaks founder Julian Assange and that the organization was about to release a “massive dump of emails that would damage” the Hillary Clinton campaign. Stone and WikiLeaks deny the account. However, even if true, it could prove that Trump lied to the public about his knowledge, but not a crime connected to collusion.
This was July 2016 after it already was publicly known that WikiLeaks had the material and was teasing its release the previous month. Cohen does not suggest that Trump had any prior knowledge or role in hacking the Democrats. Trump’s interest, even glee, over the release is not a crime, any more than it was for countless journalists trying to see the material.
Cohen spent a considerable amount of his time trying to establish that Trump is a liar. He repeated his past allegation and supplied evidence that Trump knew and participated, despite earlier denials, in the payments to Stormy Daniels and Karen McDougal over their alleged affairs with Trump. Cohen gave detailed accounts to show that Trump lied when he denied knowing about the payments and denied reimbursing those payments.
Cohen offered other examples of Trump lying, from alleged false medical claims to avoid military service during the Vietnam War to a false account from Cohen to first lady Melania Trump denying his affairs. Cohen also referred to a previous allegation of Trump misrepresenting his net worth to Forbes Magazine. That was discussed during the election. However, lying to the media, or even to the public, is again not a crime. Indeed, some in Washington have made a virtual art form out of lying to both.
Cohen alleged that Trump ordered him to arrange for a third party to bid on a Trump portrait to guarantee that it would receive the highest price at a Hamptons auction. Trump thereafter tweeted about it as evidence of his popularity. That is also not a crime. But Cohen alleged that Trump ordered using money from his charity for the purchase, then put the portrait in one of his properties. That would be illegal. There are other reports of using foundation money for personal benefit. However, the Trump Foundation was closed last year over such improprieties, and criminal cases remain rare for such violations after the forced disbanding of such organizations.
Cohen moved into cognizable criminal violations with new evidence to show the role of Trump the payment of money to his alleged mistresses, including past checks signed by Trump. Such violations are rarely brought as criminal matters and difficult to prosecute, as shown by the failed 2012 prosecution of former Democratic presidential candidate John Edwards. Nevertheless, the checks show dates extending into the term of office as president, which could be used to support impeachment proceedings.
The most serious allegations are far removed from Russian hackers and alleged “deep state” conspirators. Cohen detailed alleged transactional crimes, from false insurance claims to false bank filings related to Trump businesses. He said the United States attorney for the Southern District of New York is pursuing such criminal conduct in its ongoing investigation.
Cohen alleged that Trump committed insurance fraud by overstating the value of damages in claims filings. His most intriguing allegations involved Trump showing interest in buying the Buffalo Bills. Cohen provided the committee with financial statements from 2011 to 2013 and said Trump gave those documents to Deutsche Bank in his 2014 attempt to get a loan to purchase the football team. The documents show a sudden increase in wealth from $4.26 billion in 2011 and $4.56 billion in 2012 to $8.66 billion in 2013. This increase was attributed to the addition of “brand value.”
If that was a false account, it could be charged as bank fraud. However, there are different types of representations made during the course of such a major loan or deal. Not all of the early representations are certified as statements of assets for a loan or transaction. Cohen is sketchy on critical details and when such information was supplied to the bank.
Of course, the Justice Department continues to maintain, incorrectly in my view, that a sitting president cannot be indicted. That would mean any prosecution could be delayed until after the president leaves office. Fraud claims can have statutes of limitations from five to 10 years. That could present a serious complication for prosecutors, depending on the specific charge. Nevertheless, as some of us have maintained for more than a year now, the real threat to Trump is likely to come from collateral rather than collusion crimes. Cohen just gave Congress a roadmap to look for them.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.