Thank you to Howard Fenton, Professor of Law Emeritus at Ohio Northern University, for writing the Cohen Testimony reflection below for AHEAD.
What have we learned from Michael Cohen’s Testimony?
Howard N. Fenton, Professor of Law Emeritus
By now we are all familiar with some parts of Michael Cohen’s testimony before the House Oversight Committee (or at least have seen the marvelous Saturday Night Live send up with Ben Stiller). Aside from reminding us of the power of live television and its inherent drama at controversial and historic moments (think Army-McCarthy and Watergate hearings), the question remains what have we actually learned? Not to make light of the situation, but I would suggest that one thing we learned is that Cooley Law School wants no part of its graduate Michael Cohen, and that Capital Law School would like to pretend Jim Jordan was not one of its graduates. Neither conducted themselves in ways that we lawyers like to think our profession should behave. But aside from that professional embarrassment, where does the Congressional inquiry into our President’s conduct stand?
As any number of commentators have noted we learned very little new from Cohen. Perhaps his greatest contribution, aside from letting us know that the U.S. Attorney for the Southern District of New York is very busy, was providing the names of others in the Trump organization that would have specific knowledge of Trump’s various schemes. Many of them will soon have their own moments of televised fame I suspect. Cohen also provided some documentation such as the two reimbursement checks for $35,000 that House Minority Leader Kevin McCarthy greeted with a yawn and a “so what”. We have seen a pattern that will play out over the next several months with the newly empowered Democratic majority questioning witnesses and demanding documents, the administration and Trump organization resisting, and the Republicans in the House playing to what they perceive as their base by attacking every initiative of the House committees without attempting any substantive defense of their President.
It may be that there is little the Republicans can say in defense of Trump other than spinning conspiracy theories and attacking the media and the Democrats. When the work of Mueller’s team and other prosecutors has been tested in the courts, the defenses mounted by the defendants’ lawyers has come up short in virtually every case. This suggests there may be no basis for a substantive defense. There is the risk though that any statement of Cohen, no matter how minor, that proves to be incorrect at this point will be dramatically magnified in effort to discredit everything he said. For example, he said that his false testimony to Congress about the timing of the Moscow Trump Tower negotiations was reviewed by two of Trump’s lawyers, at least implying their complicity in his lies. It is not clear that the two lawyers in question had any access to information about these negotiations and may not have been aware of the deceit. This will be seized upon as further proof that Cohen cannot tell the truth, even as he faces prison for prior lies to Congress.
The various House committees will be busy investigating a broad range of Trump-related, initiated, condoned, or otherwise approved activities. New information will be uncovered, new individuals will be interviewed and new attacks by the Republicans will fly. Federal prosecutors will likely add to the number of Trump related defendants indicted, drawing closer and closer to his inner circle. Six months from now I think we will find Trump scandals and prosecutions competing with the Democratic Presidential race for media time. Six months will also find Michael Cohen in jail, already an historic footnote like John Dean, who, like Dean, contributed to the unraveling of one of the most corrupt Presidential administrations in the history of our republic. On the bright side, from this historical perspective, Trump’s administration may well rehabilitate the reputations of even the worst Ohio Presidents!