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Cohen's public testimony is a problem for Trump and possibly Mueller, too

“This would be incredibly disturbing to any regular prosecution.”
Cohen's public testimony is a problem for Trump and possibly Mueller too

Michael Cohen has one final parting gift for President Donald Trump before he heads off to prison in a few months: a nationally televised Q&A session about some of his former boss’s darkest secrets.

Cohen's decision to testify before Congress on Feb. 7 marks the beginning of a new era in the investigations into President Trump's affairs: the onset of public hearings starring past and present members of Trump’s inner circle, stage-managed by Trump’s Democratic opponents in the House of Representatives.


So far, Trump seems to be playing it cool, telling reporters Thursday: “I'm not worried about it at all."

But Cohen’s testimony could become a public spectacle, threatening to further poison the already toxic relationship between the White House and Democrats, and even throw a wrench into special counsel Robert Mueller’s ongoing Russia investigation, former prosecutors and legal experts said. That is, unless Mueller is close to wrapping it up, as a number of reports now suggest.

Rep. Elijah Cummings, chairman of the Committee on Oversight and Government Reform, appeared to be aware of the delicate dynamics at play, noting he planned to work with Mueller’s team so as not to step on the special counsel’s toes.

“I want to make clear that we have no interest in inappropriately interfering with any ongoing criminal investigations, and to that end, we are in the process of consulting with Special Counsel Mueller’s office,” Cummings said in a statement sent to VICE News. “The Committee will announce additional information in the coming weeks.”

“There’s no way this helps Mueller.”

But former prosecutors questioned whether Mueller would take much comfort in such assurances.

“As an old prosecutor, I have a hard time imagining anybody in Mueller’s office really got a call from Cummings and said, ‘That’s fine, that’s great, that’s helpful. Go and do that,’” Patrick Cotter, a former prosecutor who previously worked alongside Mueller’s top lieutenant, Andrew Weissmann, in the organized crime section of the U.S. Attorney’s office in the Eastern District of New York.


“There’s no way this helps Mueller,” Cotter said, adding that Cohen’s testimony risked undermining statements he’s already given to the special counsel.

“This would be incredibly disturbing to any regular prosecution”

Asked by reporters Thursday whether Mueller had signed off on Cohen’s appearance, Rep. Cummings replied, “Of course.” He added that the special counsel’s team had “cleared it.”

Former prosecutors said that under most circumstances, sending a witness to testify before Congress is a thing of dread that could complicate ongoing investigations. Especially if Cohen — who is now heading to jail, in part, for already lying to Congress once — says things that don’t line up with what he’s already told Mueller.

“This would be incredibly disturbing to any regular prosecution,” said Rebecca Roiphe, an expert on prosecutorial ethics at New York Law School. “But I think it’s possible Mueller’s not as upset about it as other prosecutors would be. It’s possible Cohen’s never going to be used in a future criminal case against anyone.”

Another explanation: The committee may press Cohen only on areas that Mueller has deemed acceptable, thus limiting the investigation’s exposure and allowing it continue to do its work outside the glare of Congress.

Cummings appeared to confirm as much Thursday, telling CNN that Cohen would not be fielding questions on matters that could interfere with the Mueller investigation during his public testimony. Meanwhile, congressional investigators plan to ask questions pertaining to the Russia investigation in a closed -door session, Rep. Adam Schiff, chairman of the House Intel Committee, told NBC News.


But Republican congress members will get to ask questions too. And they’re likely to feel no such deference to Mueller’s work. In a statement, the top Republican on Cummings’ committee, Jim Jordan, trashed the hearing as “political theater” and dismissed Cohen as someone who’d already lied to Congress once before.

For his part, Cohen’s motivation to testify publicly may actually be his less-than-chummy relationship with Mueller and prosecutors in the Southern District of New York, legal experts said.

Despite his desperate appeals for leniency, Cohen was sentenced to three years in December after pleading guilty to multiple counts of financial fraud and one count of lying to Congress.

Before sentencing, Mueller’s team told the judge that Cohen had provided “credible and consistent” information. But a separate set of prosecutors in Manhattan roasted Cohen for not sharing everything he knows about matters beyond those he’s already been busted for.

“My view is that he’s now running a public relations strategy, attempting to reduce his time and emerge from this in the eyes of his family, himself and the public as redeemed,” Roiphe said. “It looks like he’s trying to shape the perception the world has of him.”

Mueller's timeline

Mueller’s blessing to Cummings could signal that he’s nearing the finish line of his probe. And Cohen’s decision to testify publicly follows other indications this week that Mueller’s investigation may be on the verge of drawing to a close.

On Wednesday, The Washington Post reported that some senior White House officials believe that Mueller could file his report as early as February.


And on the same day, numerous outlets reported that Deputy Attorney General Rod Rosenstein — the man who brought Mueller in — plans to leave his post in the coming weeks. NBC News later specified one key condition, however: Rosenstein would be leaving only after the special counsel had completed his work.

“It’s a lot easier to get a witness to testify in the House when he’s not incarcerated.”

The famously tight-lipped Mueller hasn’t helped clarify a timeline, and experts are wary to read tea leaves when it comes to his sprawling investigation into election interference and Trump’s 2016 presidential campaign.

And former prosecutors said Cohen’s decision to appear before Congress shouldn’t necessarily be considered a sign that Mueller is wrapping up.

“This doesn’t mean they’re done with the larger investigation,” said Ilene Jaroslaw, a former prosecutor and now a member of the law firm Hoguet Newman Regal & Kenney.

Instead, Cohen may be heading to Congress in February because he’s off to prison in March, she said.

“It’s a lot easier to get a witness to testify in the House when he’s not incarcerated,” she said.

Cover: Michael Cohen walks out of federal court, Thursday, Nov. 29, 2018, in New York. Cohen, President Donald Trump's former lawyer, pleaded guilty to lying to Congress about work he did on an aborted project to build a Trump Tower in Russia. He told the judge he lied about the timing of the negotiations and other details to be consistent with Trump's "political message." (AP Photo/Julie Jacobson).