President Donald Trump may have been the focus of Michael Cohen’s blockbuster congressional appearance on Wednesday. But it's Trump’s eldest son, Don Jr., who would seem to face the most immediate legal jeopardy, from what Cohen presented.
Cohen offered new testimony and evidence, including a signed check, that linked Don Jr. to his father’s hush money payment, just weeks before the 2016 election, to a woman claiming she had an affair with Trump in 2006. Cohen’s testimony also appeared to be odds with some of Don Jr.’s own sworn statements to Congress.
Don Jr. has long been the subject of intense scrutiny over his role in his father’s business and campaign decisions, so much so that he’s reportedly told friends he expects to be indicted by special counsel Robert Mueller. Cohen’s explosive testimony Wednesday, which is already known to federal prosecutors, may be the clearest indication yet of the legal peril he’s facing, former prosecutors told VICE News.
“This is a really bad look for Don Jr.,” said Rebecca Roiphe, a former federal prosecutor and an expert on prosecutorial ethics at New York Law School. “Although it’s not yet a slam-dunk case.”
Don Jr. hasn’t been charged in connection with the illegal hush money payments made to women during the campaign, but at least one former prosecutor has publicly suggested he may be the unnamed “Executive-2” identified by prosecutors in their indictment against Cohen for those transactions. Cohen said he believes that’s probably the case.
Cohen’s testimony Wednesday broke new ground, providing documentary evidence of Don Jr.’s role in buying adult film star Stormy Daniels’ silence.
The president's former lawyer testified under oath on Wednesday that Don Jr. would have known about the broad strokes of the deal, in which Cohen was later paid back, in installments, by Trump’s company for his initial payout to Stormy Daniels.
“Don Jr. would have cursory information” about the arrangement, Cohen testified.
But perhaps more worrisome for Don Jr. was Cohen’s assertion that Trump Organization Chief Financial Officer Allen Weisselberg, who is now reported to be fully cooperating with investigators, would know “for sure” about the payment details.
To bolster his case, Cohen presented a check he said was signed by both Don Jr. and Weisselberg, reimbursing him for the $130,000 payment he made to Stormy Daniels shortly before the election.
Weisselberg, who has worked in Trump’s company for decades, is widely believed to have intimate knowledge of all of Trump’s financial dealings — and doesn’t face the same reputational damage that Cohen does.
To prove wrongdoing, prosecutors will have to show that Don Jr. knew what the payment was for, said Harry Sandick, a former prosecutor in the Southern District of New York. This is where Weisselberg’s cooperation could prove pivotal.
Prosecutors will ask Don Jr. and Weisselberg: “Did they know the purpose of the check was to reimburse Cohen for a campaign-related expenditure, and did they know it was contrary to law for Cohen to make such a payment?” Sandick wrote in an email to VICE News.
Cohen, and federal prosecutors with the Southern District of New York, have already implicated Trump himself in directing Cohen to organize the hush-money payments. Department of Justice policy, however, says that a sitting president can’t be indicted — a privilege Trump’s son does not enjoy.
Unfortunately for Don Jr., the hush-money payments aren’t the only activities investigators are closely scrutinizing.
What Don Jr. knew about Russia
Democrats in Congress have already asserted they believe Don Jr. lied under oath, and Cohen’s testimony Wednesday only heightened concerns about Don Jr.’s truthfulness before congressional committees, legal experts said.
Asked before the Senate Judiciary Committee whether he had “any involvement” in the potential deal to build a Trump Tower in Moscow before the 2016 election, Don Jr. demurred.
“Like I said, I was peripherally aware of it,” Don Jr. responded, according to the transcript. “But most of my knowledge has been gained since, as it relates to hearing about it over the last few weeks.”
Cohen, however, testified Wednesday that he briefed both Don Jr. and Trump’s daughter Ivanka about 10 times while he was pursuing a possible Trump Tower deal in Moscow. Cohen added that he reported back to Donald Trump “after each communication.”
Cohen’s assertion implies a greater familiarity with the project than Don Jr. has acknowledged, said Roiphe. But by itself, without further supporting evidence, Cohen’s testimony likely wouldn’t be enough make a perjury charge stick, she said. Cohen has admitted to previously lying under oath to Congress about the Moscow project, when he said that talks had ended months before they really did.
“If he was in fact briefed 10 times on Trump Tower, that seems inconsistent with his statement that he was peripherally involved, though not necessarily like an affirmative lie,” Roiphe said. “I wouldn’t charge that as a lie.”
Rep. Jackie Speier, a Democrat from California, has said she believes Don Jr. lied to her own House Intelligence Committee twice.
“I don’t really want to go into it at this point, but I think there’s at least two occasions where he lied to the committee,” Speier said in December.
“Don Jr. speaking to Trump behind the desk is big.”
On Wednesday, Cohen also challenged another sworn statement made by Don Jr.: that he didn’t recall ever speaking to his father about the now infamous June 2016 Trump Tower meeting, in which he spoke to a lawyer from Moscow on the pretense that she had dirt on Trump’s opponent, Hillary Clinton.
Cohen said he remembered just such an incident.
“I recalled Don Jr. leaning over to his father and speaking in a low voice, which I could clearly hear, and saying: ‘The meeting is all set,’” Cohen said. “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.”
That detail, while yet to be substantiated by further supporting records or testimony, still appears to represent “good circumstantial evidence” that Trump may have been aware of Russia’s support for his candidacy, and that he may have intentionally taken steps to reward or encourage it, said Seth Waxman, a former federal prosecutor based in Washington, D.C.
“Don Jr. speaking to Trump behind the desk is big,” Waxman said.
Cover: Eric Tump, left, Donald Trump Jr., center and Tiffany Trump applaud as President Donald Trump delivers his State of the Union address to a joint session of Congress on Capitol Hill in Washington, Tuesday, Feb. 5, 2019. (AP Photo/Andrew Harnik)