Michael Cohen’s testimony before the House Oversight Committee on Wednesday was a master class in how prosecutors can present cooperating witnesses who have lied and engaged in criminal conduct, and use their testimony to obtain convictions from juries. This is stock-in-trade for prosecutors because of one simple truth: Choirboys don’t often end up in the middle of criminal conspiracies. Prosecutors don’t pick their witnesses; defendants do.
Although Cohen, President Trump’s former fixer and personal attorney, did not testify in a criminal trial, under questioning from a prosecutor, but rather in a congressional proceeding, under questioning from lawmakers, what we saw was an example of how someone who has stood before a judge at the lowest moment of his life, acknowledging participation in criminal acts, can become a credible witness.
It is the very fact of a defendant’s criminality that creates the baseline for this transformation. Prosecutors require witnesses with firsthand knowledge. Witnesses with firsthand knowledge are mostly high-level participants in serious crimes. But how does the conversion take place? How does a defendant who has been involved in sustained criminal activity, who has threatened people, who has lied, who has participated in fraud and is generally subject to being excoriated on cross examination by the defense because of that behavior, become a witness whom jurors, or a country, can believe, even if they don’t like him or his conduct?
It starts with the nonnegotiable commitment by the defendant to cooperate fully and truthfully, to assist as requested in other investigations and cases. We know that the office of special counsel Robert S. Mueller III believes that Cohen did this — it told us so in its sentencing recommendation for him. Cohen himself told us on Wednesday that he was in “constant contact” with prosecutors in the Southern District of New York. To be caught lying again can render the cooperator potentially unredeemable — a Paul Manafort, so to speak.
The key question the night before Cohen testified was, would he be believed? Would Republican members of the committee eat him alive? He had, after all, pleaded guilty to felony charges of lying to Congress.
On Wednesday, Cohen began the transformation from deceitful criminal to believable witness. That doesn’t mean he redeemed all of his past sins, became one of the good guys or even turned into someone you could admire. What he did was simple. He testified to facts in a manner that, even if it required further corroboration to be definitive, was believable as presented.
First, Cohen, as they say, brought the receipts. He brought the check, the financial statements, the article with Trump’s writing, the letters he wrote threatening Trump’s schools if they disclosed his grades or his scores. These pieces of evidence are building blocks, not smoking guns, in the sense that they tell part of a story but don’t independently establish crimes. But they each corroborate Cohen’s testimony in their own way and suggest there are additional paths to corroboration that investigators can pursue.
Second, Cohen didn’t go too far, when he easily could have. Asked whether Trump directed him to lie to Congress, Cohen didn’t say he had in so many words. Rather, he explained how Trump instructed him, indirectly, by saying what happened and didn’t happen as though it were the truth. Cohen said that after working for Trump for so many years, he understood the code. It would have been more beneficial to Cohen, if he was lying about it, to say Trump gave him a direct order. That he didn’t was a credibility builder.
When questioned about the existence of a video showing Trump striking his wife, Melania, in an elevator, Cohen didn’t just say he didn’t believe such a video existed, he vehemently denied the possibility Trump had even struck her. A liar, seeking the good graces of the government or the public, would have gilded the lily.
In another instance of restraint, when testifying about a call Trump received from his associate Roger Stone about WikiLeaks and the upcoming release of stolen Democratic National Committee emails, Cohen didn’t testify that Trump knew the emails were coming from Russia or that he directed Stone’s conduct in any way. Cohen said that when Stone advised Trump of the upcoming release, Trump responded, “Wouldn’t that be great.” It’s not useless, but it’s not exactly the testimony of a prosecutor’s dreams. Had Cohen been making it up, he would have placed Trump at the center of a conspiracy, directing the action.
Similarly, when asked whether the president colluded with Russia, Cohen candidly admitted he had seen no evidence of it. He acknowledged that he had his suspicions — and who among us hasn’t — but did not tell stories he could have readily manufactured, had he been of a mind to, based on his close contact with the president.
Restraint can help persuade a jury to believe a witness with a history of lying. If witnesses are going to lie, particularly to help themselves out, they’re going to tell whoppers. Cohen’s testimony was relevant and in some cases inculpatory. But if he were making it up, one would expect him to have gone much further.
Third, Cohen’s story made sense. And we should never undervalue common sense in legal proceedings. When prosecutors make their closing arguments to juries before they deliberate and discuss the law the judge has instructed them on regarding burdens of proof and evaluating evidence, they often tell them that they need not leave their common sense at the door when they enter the jury room to deliberate. This is true when we evaluate Cohen’s testimony, too. And the key piece of that is whether what we know from other sources about the president, his relationships with others and his engaged approach to running his business and his campaign makes it more or less likely that the details Cohen relates are true. Was the comment Cohen said he overheard Donald Trump Jr. whisper to his father — “The meeting is all set” — about the June 2016 Trump Tower meeting with Natalia Veselnitskaya and other Russians? We don’t know for certain from Cohen’s testimony, but common sense says not to rule it out, that it requires further investigation. Cohen engaged in limited speculation based on timing and the unusual circumstances of Trump Jr.’s approach to his father, concluding that it might have been about the Trump Tower meeting. But in this case, as in others, he allowed the common sense of his listeners to draw conclusions about what he had observed or heard, rather than forcing them.
Finally, there was Cohen’s demeanor. Before he testified, there was no way of knowing if he would be aggressive, combative, arrogant, indignant — the sort of traits that can be hallmarks of an unbelievable witness. Cohen was none of those things. He was serious and respectful. He absorbed the blows that were thrown his way without flinching and acknowledged his criminality. When Rep. Jim Jordan (R-Ohio) challenged Cohen’s remorse and acceptance of responsibility, Cohen pushed back strongly, looking straight at Jordan and telling him, “That’s not what I said” and noting he had pleaded guilty and taken responsibility for his actions in court. When he said, “Shame on you, Mr. Jordan,” it seemed likely that it was not only the Democrats on the House Oversight Committee who found themselves in agreement.
There is little doubt that on the committee, there is something close to a party-line split over whether Cohen was believable. For a swath of the public, and certainly for prosecutors evaluating whether they would be willing to put Cohen on the witness stand in a trial, the answer was not in doubt. Cohen made a statement in his written testimony that his performance Wednesday bore out: “The last time I appeared before Congress I came to protect Mr. Trump. Today, I’m here to tell the truth about Mr. Trump.”