Opinion: The Vilification of Michael Cohen

The media and legal commentators seem to have developed a collective amnesia about Michael Cohen’s history. Observing the daily disparagements of Cohen as a “serial liar” and predictions of what a terrible witness he will be, an uninformed consumer of the news would likely believe that Cohen is a uniquely bad witness who carries enormously heavy baggage. In fact, his “baggage” is well within standard size and weight limits for a cooperating witness’ “carry-on” luggage.

Media coverage has become so accustomed to casually disparaging Cohen as a “convicted liar” that most in the public could be forgiven for not even knowing what Cohen was convicted of lying about. Cohen, who was former President Donald Trump’s lawyer and “fixer,” was convicted for making false statements to a bank to get a home equity loan for $500,000, concealing $4 million from the IRS, lying to Congress by claiming a Russian business project had not been pursued after Trump became the Republican nominee in 2016, and violating campaign finance laws by arranging for the $130,000 payment to Stormy Daniels to keep her silent in an effort to aid the Trump 2016 campaign.

Consistently missing from the media coverage is the reminder to viewers that all but two of Cohen’s convictions came in service of Trump and allegedly at his direction.

Holding aside the fact that the two convictions for bank fraud and tax fraud sound remarkably similar to Trump’s practices of inflating and deflating property values—for which the former president and the Trump Organization were found guilty of civil fraud to the tune of $453 million in fines and Trump’s bragging about paying zero taxes—they arose from investigations that came after he was under scrutiny by Robert Mueller.

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Mueller, for those who have forgotten such ancient history, was the special counsel appointed to investigate Trump and his 2016 campaign’s ties to Russia. During that investigation, Mueller’s team made a referral to the U.S. Attorney’s Office for the Southern District of New York, and that office on behalf of the Department of Justice with the FBI executed a search warrant on Cohen’s law office. This is important because it is standard operating procedure for prosecutors to apply special scrutiny to people they think can be leveraged to cooperate in criminal investigations against higher-ups. That was Michael Cohen. The higher-up was Donald J. Trump.

In all likelihood, Cohen would never have come under criminal scrutiny but for the crisis faced by the Obama DOJ in 2016. Today, after two failed impeachments and dozens of felony charges, it is hard to remember the enormous alarm and pressure upon the DOJ and the FBI as they considered the unimaginable risk to national security posed by members of the Trump campaign being potentially compromised by ties to Russia. That they learned of this only 100 days before the 2016 election only compounded the crisis and spawned the extremely close-hold investigation code-named “Crossfire Hurricane.” That investigation led to the Mueller special counsel probe and the eventual charges against Cohen.

Like many Trump loyalists, Cohen remained loyal to Trump initially and gave false testimony to Congress in an effort, in Cohen’s words, “to be consistent with individual-1’s [Trump’s] political messaging and out of loyalty to individual-1 [Trump].”

But as the pressure mounted, he caved in. Nothing better illustrates that pressure than the fact that his investigation included a search warrant executed upon his law office—such searches are considered highly sensitive and have to be approved up the chain at the DOJ at the highest levels—and charges brought by not one but two sets of federal prosecutors working together. The lying to Congress charge was done by the Mueller team, while the tax, bank, and campaign finance charges were done by the DOJ via the U.S. Attorney’s Office for the Southern District of New York.

At sentencing, the Mueller team gave Cohen credit for his cooperation, telling the judge that he “has told the truth.” The DOJ, by then under control of the Trump administration, disagreed, saying that in its case Cohen’s efforts “fell short of cooperation,” and it sought a “substantial prison term.” Cohen was sentenced to three years in prison and served 13 and a half months in federal prison and a year and a half in home confinement.

Recovering this history of Cohen’s actual “baggage” is critical to evaluating what kind of witness he will be and in assessing his testimony as it unfolds. Prosecutors know this and will elicit Cohen’s prior history from him in his direct testimony.

It is standard for prosecutors to present a cooperating witness by bringing out their previous convictions and lies to pre-empt equally standard attacks by the defense on cross-examination. Here the Manhattan District Attorney’s office—an office that presents cooperating witnesses likely on a weekly if not daily basis—will bring out Cohen’s criminal history not just as a shield against cross-examination from Trump’s defense team but also because that history is an integral part of Cohen’s testimony.

The fact that two of his four convictions result from trying to help Trump and that the other two would never have come to light but for investigations into Trump will give the jury the timeline and history of Cohen’s work with the former president, allowing them to evaluate his bona fides as an insider with valuable knowledge. For those strongly inclined to dismiss Cohen’s testimony as being false, it is worth remembering that not only did the Mueller team find his testimony truthful but so did impeachment investigators who questioned him about the very same allegations about the money paid to Daniels.

Norm Eisen, counsel to the House Judiciary Committee for the first impeachment and trial of Trump, writes: “Cohen has never wavered since [being interviewed for the impeachment] in the key details he provided me about the election scheme and its cover-up that will also be at the center of his testimony in Trump’s Manhattan criminal trial.”

Cooperating witnesses are often thought of negatively as “snitches” and being self-serving rather than being given the more noble title of “whistleblower.” But whistleblowers almost always have culpability in the wrongdoing they are reporting about, ranging from slight to grave. If Cohen’s testimony goes well and helps secure conviction of Trump, then history will judge him kindly and he will likely join the ranks of American whistleblowers dating back to the American Revolution, when naval officers alerted the Continental Congress to abuses of British POWs.

Cohen’s book about how Trump weaponized the DOJ is titled Revenge. But his true revenge may be a loftier place in history than he could ever have imagined as he toiled doing Trump’s dirty work a decade ago.

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