Trump’s threats against Cohen's family look a lot like witness tampering, former prosecutors say

President Trump breezily dismissed the notion that he might have scared his former attorney and “fixer,” Michael Cohen, out of testifying voluntarily before Congress by making threats against Cohen's family.

“He’s only been threatened by the truth,” Trump told reporters Wednesday.

But Trump and his lawyer Rudy Giuliani’s public statements about Cohen’s family look like significant evidence of witness tampering, former prosecutors and legal experts told VICE News. These latest attacks make plain a months-long pattern of abuse and intimidation by Trump, that if he weren’t president, could land him in jail, they said.

“[I]t’s another example of obstruction and witness tampering in plain sight,” said Seth Waxman, a former federal prosecutor based in Washington DC. “If this had been discovered in an email during an investigation, prosecutors would be jumping up and down about finding another example of criminality.”

The dispute marks the dawn of a new era of conflict in Trump’s presidency, in which the White House and newly-empowered Congressional Democrats battle over which Trump aides, allies, employees and family members will get hauled before Congress to discuss Trump’s ugliest secrets on national television. The White House did not respond to an emailed request for comment for this story.

Both sides have legal weapons at their disposal, and both look primed to use them. On Thursday, the Senate was the first chamber of Congress to exercise its powers, slapping Cohen with a subpoena to testify on Feb. 12 before its Intelligence Committee.

Cohen’s surprise about-face on Wednesday unleashed fierce blowback from both levels of Congress, including a public warning from powerful House Committee chairmen to Trump that intimidating a witness out of Congressional testimony is against the law.

“I’m extremely concerned about Mr. Cohen’s declaration that threats have been made against him and his family,” Rep. Jackie Speier, a Democrat on both the House intelligence and oversight committees, told VICE News. “His testimony is extremely important to our investigations. Under Article 1 of the Constitution, it is a crime for anyone to intimidate or prevent witnesses from testifying before Congress. We will not tolerate witness tampering by the President or any of his surrogates.”

Cohen’s lawyer, Lanny Davis, urged the House on Thursday to pass a resolution censuring Trump.

Legal experts said that by publicly suggesting Cohen’s wife and father-in-law should face scrutiny over possible unspecified crimes, Trump and Giuliani appeared to be threatening Cohen not to divulge any damaging information about the president.

“It’s definitely witness tampering and totally inappropriate," said Jens David Ohlin, vice dean of Cornell Law School. “By linking the two issues, Trump is suggesting that if Cohen talks, his family members will be prosecuted. If any one other than the president did that, they’d be indicted by the Justice Department for obstruction of justice.”

Longstanding DOJ policy holds that a sitting president can’t be charged with a crime, even if he flagrantly commits one. But Davis, Cohen’s attorney, argued that Giuliani has no such protection, and should face consequences.

“Mr. Trump has immunity from indictments, so it's alleged or argued in the Justice Department,” Davis said on Good Morning America. “But Mr. Giuliani has committed a crime or at least should be indicted for that crime on the face of what he said on national television.”

Davis was referring to an appearance Giuliani made last last weekend on CNN, where he defended Trump’s attacks on Cohen, and asserted, without evidence, that Cohen’s father-in-law has links to “organized crime.”

Cohen heard Trump’s message and flipped out, according to his friend Donny Deutsch.

“He was panicked,” Deutsch said on MSNBC last week. “He was like ‘he’s going after my father-in-law. Are my children next?’”

“You have no idea what this man is capable of,” Deutsch recalled Cohen saying.

Any team of prosecutors pursuing an open investigation in which Cohen is a witness could potentially decide to bring charges. That could include probes being led by special counsel Robert Mueller, the Southern District of New York and New York State, Waxman, a former prosecutor, said.

On Wednesday, Davis confirmed that Cohen is still cooperating with “ongoing investigations.”

The latest episode is hardly the first time Trump has attacked Cohen for cooperating with federal investigators. Last month, Trump, using classic mob-boss speak, called Cohen “rat,” days after his former attorney pleaded guilty to lying to Congress.

By contrast, Trump has praised those around him who have challenged Mueller. He hailed his former campaign chairman, Paul Manafort, who pleaded guilty to multiple counts of bank and tax fraud, as a “brave man” after his initial refusal to admit guilt. Trump specified that a pardon for Manafort isn’t “off the table.” He offered similar praise to his longtime confidante and former political advisor Roger Stone, who vowed that he wouldn’t testify against the president. For that, Trump said, Stone had “guts.”

The latest assault from Trump and company went beyond his previous bluster, former prosecutors said.

“For the president to suggest that the full force of the federal government will be used against Cohen’s father-in-law if Cohen gives anticipated unfavorable testimony before Congress is wrong and probably illegal,” said Harry Sandick, a former prosecutor. “I do think that threatening the family member of a witness with prosecution is over the line.”

But a prosecutor would need to show that the comments were intended to influence Cohen's decision to make charges stick. And the very public nature of the statements gives rise to the potential excuse that nothing of the sort was meant by it.

“Most people violate this law in private,” said Rebecca Roiphe, a former prosecutor and expert on prosecutorial ethics at New York Law School. “I'm sure that the president would argue that he never intended to affect Cohen's testimony.”

Cover: President Donald Trump, gestures while speaking during a healthcare roundtable in the Roosevelt Room of the White House, Wednesday, Jan. 23, 2019, in Washington. Jamesia Shutt, of Aurora, Colo., is at right. (AP Photo/Jacquelyn Martin)