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Michael Cohen’s Flip Was a Flop

Michael Cohen testifying Feb. 27, 2019, to Congress. (Credit: C-Span/YouTube Screenshot)

With the president of the United States practicing nuclear diplomacy 8,000 miles away in Vietnam, Americans at home got to watch former Trump lawyer Michael Cohen stand up on his hind legs and beg for a reduced jail sentence.

Cohen, testifying on Wednesday before the House Committee on Oversight and Reform, told Americans who think they already know exactly what they wanted to hear: Trump is a vulgar con man, a racist, and a cheat. Also, water is wet.

The media is burying the lede: Michael Cohen did not provide any evidence of Russian collusion with the Trump campaign, nor of collusion, active coordination, or conspiracy with Wikileaks. Cohen’s accusation of a Trump crime while in office is at best an evidence-free rendering of an unclear violation of a campaign finance law usually settled with a fine.

Any action going forward would be a big ask. It would mean building a criminal case, or even impeachment, around the uncorroborated testimony of a disbarred, convicted felon who violated attorney-client privilege to plead for a shorter sentence. Absent corroborating evidence, it is hard to see Cohen’s testimony leading to much of anything. It all sounded very dramatic and will be played as such by the media, but when read closely, it’s just another faux smoking gun. There’s no meat on these bones.

On Russian collusion, Cohen stated, “Questions have been raised about whether I know of direct evidence that Mr. Trump or his campaign colluded with Russia. I do not. I want to be clear. But I have my suspicions.” Cohen claimed he saw Don, Jr. tell his father that some meeting had been set. “I concluded that Don, Jr. was referring to that June 2016 Trump Tower meeting about dirt on Hillary with the Russian representative when he walked behind his dad’s desk that day.” A defense lawyer would laugh as she labeled Cohen’s “conclusion” speculation and uncorroborated supposition. He had no idea what meeting was mentioned.

On business in Russia, Cohen claimed that Trump “lied to the American people” about negotiations to build a hotel in Moscow. Leaving aside that there is nothing illegal about this, a review of Trump’s statements show that Cohen’s supposed lies would be labeled by a defense lawyer as a careful parsing of words. Slate concluded after its own parsing that at worst Trump may have misled by omission, and even that requires one to dig into tweets where he used the present tense rather than the past.

On Stormy Daniels, Cohen showed a check for $35,000 from Trump to him, which was supposedly part of the total $130,000 paid to Stormy Daniels to keep quiet. The check does not show what the payment was for. It does not have Stormy’s real or fake name on it. Cohen said it was part of the reimbursement for “illegal hush money I paid.” It is a receipt for a crime only because Cohen now says it is.

Under questioning, Cohen claimed there was no corroborating evidence beyond 11 similar checks he received after sending invoices to Trump for “retainer fees.” Don’t bother with Cohen’s invoices because Cohen now says he lied on them, claiming they were retainer fees when he meant “hush money reimbursements.” Those 11 checks will total over $400,000, because supposedly Trump rolled Cohen’s fee and bonus into the amount. So we just have to take his word for it that some of that money was for Stormy. Cohen said some of the checks were signed by Don Junior and the Trump Organization’s CFO. So if the checks are going to be used as evidence, the hope will be to implicate personally someone who did not sign them.

Left unsaid at the hearing was that paying money as part of a nondisclosure agreement (NDA) is not illegal. People legally pay others to be quiet all the time. Legal services such as Cohen provided are a standing campaign cost. (Lawyers regularly obtain discreet resolutions of issues that threaten the interests of their clients. It’s usually called a settlement, not an impeachable offense.) The alleged illegality comes from the supposition by Cohen that he can speak to Trump’s intent. He can affirm that the NDA was not, say, to spare Trump’s marriage from fresh embarrassment, but, as the text of the law puts it, “for the principal purpose of influencing an election.” And that amid everyone already knowing that Trump was a serial philanderer anyway.

Campaign finance law also requires proof that a person willfully violated the law. Cohen’s testimony does not prove Trump knew the payments he was making were illegal. Prosecutors would somehow have to prove that he did if they wanted to charge the president. It is hard to imagine impeachment hearings centered on the intricacies of federal election law.

On Trump ordering Cohen to lie to Congress, Cohen said, “Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates. In conversations…he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing. In his way, he was telling me to lie.” Cohen later referred to some sort of telepathic-like Trump “code” that was used to order him to lie.

On Wikileaks, Cohen stated, “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.” The NSA will need to prove the call happened because Cohen says there were no others present to corroborate his claim.

Cohen said the phone call took place July 18 or 19. Trump could have read on Twitter on July 7 that Wikileaks had pending releases. Earlier, in The Guardian on June 12, Assange announced that he’d be releasing more Clinton emails, which the newspaper stated will “provide further ammunition for Donald Trump, her Republican presidential rival, who has used the issue to attack her.” The Stone call, if it took place, was based on public knowledge. The core of Cohen’s bombshell was available online.

The emerging media bleat that Trump lied in writing to Mueller about contact with Stone, and thus, if Cohen is to be believed, committed perjury, is based solely on unconfirmed anonymous sources. No one outside the White House and Mueller’s office knows what Trump wrote in answer to the special prosecutor’s interrogatories.

So that’s it? A saga that began in the summer of 2016, that commanded a special prosecutor to investigate whether the Russian government worked with the current president of the United States as an intelligence asset to help him get elected, is going to hinge on the minutiae of campaign finance law backed up by the word of Michael Cohen? That is going to be lawyered into impeachment? Heaven help us when #BelieveCohen starts trending.

Remember, first it was going to be Comey’s testimony that took down Trump. Then Papadopoulos was going to flip, or maybe Manafort, or Flynn. There were video tapes of something naughty and a Russian spy with red hair. Books by Comey and Clapper were going to blow the roof off. The walls were closing in again and again and again. And then it would be Mueller time! Or maybe Southern District of New York time, because the media seems to be prepping us for a Mueller letdown.

It is all exhausting. We’ll see soon enough whether voters feel like a dog with a mean owner always holding out a Scooby treat he’ll never let go. Eventually that dog might say, I’m either gonna bite that SOB or just stop giving him the satisfaction of salivating.

Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. He is permanently banned from federal employment and Twitter.

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