Editor’s Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The views expressed in this commentary are his own. View more opinion articles on CNN.
Michael Cohen’s public testimony before the House Oversight Committee on Wednesday will crackle with the human drama, high stakes and political intrigue of a John Grisham novel. President Donald Trump’s longtime attorney – now a convicted felon soon to report to federal prison – will respond to grilling by a sharply-divided panel of politicians about the corrupt inner workings of the Trump campaign and the man he once served but has now turned on.
Adding to the dynamism and unpredictability of Wednesday’s hearing, the usual rules that guide criminal trials and other courtroom proceedings will not apply. There will be no rules of evidence, no rules of criminal procedure, no judge and no jury. House Oversight Committee Democratic Chair Elijah Cummings issued a memo purporting to limit the scope of Cohen’s testimony, but the listed topics – “the accuracy of the President’s public statements” and “the President’s debts and payments relating to efforts to influence the 2016 election,” for example – are so broad that virtually any question can be designed to fall within them.
Further, Committee members will be playing for the cameras (as will Cohen), and the questioning undoubtedly will track partisan lines. Look for Democrats to use Cohen as a tour guide to crime and corruption in the inner sanctum of the Trump campaign and administration. Count on Republican members to focus on Cohen’s own record of criminality and dishonesty, and to use Cohen as a vehicle to cast doubt on the tactics and motives of special counsel Robert Mueller.
Despite how unusual Wednesday’s hearing will be, Cohen, in certain fundamental respects, is a typical cooperating witness: he brings baggage and has credibility issues, but he also offers unique firsthand insight into the inner workings of a closed and potentially corrupt organization.
With that in mind, here are five questions the House Oversight Committee should ask Cohen at Wednesday’s hearing.
1. Who, if anyone else, was involved in making hush money payments to two women right before the 2016 election?
Cohen pleaded guilty in August 2018 to various crimes, including two counts of campaign finance violations for facilitating payments to silence women who allegedly had affairs with Trump. (Trump denies both allegations.) During his guilty plea, Cohen stated under oath that he facilitated the payments “in coordination and at the direction of a candidate for federal office” (plainly, Trump). The United States Attorney’s Office for the Southern District of New York confirmed in its sentencing letter that “with respect to both payments, (Cohen) acted in coordination and at the direction of Individual-1” (again, obviously Trump). Committee members must ask Cohen to detail Trump’s involvement in and knowledge of those illegal hush money payments.
Beyond Trump, Cohen’s charging document alleges that Trump Organization “Executive-1” and “Executive-2” authorized and made payments to reimburse Cohen for one of the hush money payments. Depending on how much those executives knew about the scheme, they too could face liability for campaign finance violations. Committee members should ask Cohen to identify “Executive-1,” “Executive-2,” and any others who were involved in the hush money payments. Committee members also should ask Cohen what those executives knew about the scheme and its intended purpose to silence women and to protect Trump’s electoral prospects.
2. Before you gave false testimony to the Senate about the Trump Tower Moscow project, did you discuss or coordinate your false testimony with anyone else?
Cohen pleaded guilty in November 2018 to lying to the Senate about the timing of the Trump Organization’s efforts to build a skyscraper in Moscow. Cohen falsely testified that the project ended by January 2016, when in fact it continued until at least June 2016 (well into the campaign season and after Trump had emerged as the presumptive Republican nominee).
While uncertainty remains about the involvement of Trump and others in Cohen’s false testimony, Mueller confirmed in Cohen’s sentencing memo that Cohen provided “relevant and truthful” information regarding various topics, including “the circumstances of preparing and circulating his response to the congressional inquiries.” So, we know that others were involved in preparing and reviewing Cohen’s false testimony. Committee members should dig deep into who else worked with Cohen to develop his false testimony, and whether those people knew that the testimony was false.
3. Did the Trump inaugural committee accept money from foreign contributors or commit other crimes?
The Southern District of New York recently subpoenaed the Trump inaugural committee for documents relating to its donors, vendors and finances. The subpoena lists a broad array of potential crimes under investigation, including money laundering, conspiracy, false statements and illegal contributions from foreign nationals.
Cohen made a recording of a conversation he had with Stephanie Winston Wolkoff, a former adviser to first lady Melania Trump, who expressed concern about the inaugural committee’s spending, according to the Wall Street Journal. Committee members should drill deep on Cohen’s knowledge of the inaugural committee’s financial practices, including its receipt of donations from foreign nationals (either directly or indirectly through third-party straw donors) and any potential embezzlement or self-dealing by inaugural committee officials. A spokesperson for the committee has stated that the inaugural committee intends to cooperate with the inquiry.
4. Did Trump or anyone else ever talk to you or your lawyers about the possibility of a pardon?
Cohen’s decision to cooperate with prosecutors clearly struck a nerve with Trump: In April 2018, Trump tweeted that Cohen was “a fine person with a wonderful family” and praised him for declining to “flip.” Eight months later, Trump borrowed mafia lingo and tweeted that Cohen was a “rat.”
The New York Times reported last week that Trump’s attorneys reached out to attorneys for Paul Manafort and Michael Flynn to discuss possible pardons, potentially as a means to prevent them from cooperating with investigators. (Trump denied the Times reporting.)
Trump might have used similar tactics to try to keep Cohen quiet. Committee members should ask Cohen whether Trump or any other person ever discussed the possibility of a pardon with Cohen, and whether Cohen took such offers as an effort to dissuade him from cooperating.
5. What questions did you refuse to answer from the SDNY during your attempted cooperation?
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In its sentencing memo, the SDNY stated that it found Cohen “forthright and credible” but objected that Cohen “repeatedly declined to provide full information about the scope of any additional criminal conduct in which he may have engaged or had knowledge.” In other words, Cohen was willing to answer some questions but not others. Committee members should ask Cohen what questions the SDNY asked that he declined to answer – and why. Clearly, Cohen did not want to tell the SDNY about somebody or something. The Committee should dig into that to learn who or what Cohen was trying to protect.
Cohen will not have all the answers, and his credibility is far from perfect. However, he had access to the inner workings of the Trump campaign and administration, and now that his criminal case is over, he has little incentive to bend the truth. If the House Oversight Committee questions Cohen in a focused and strategic manner, his testimony could move us closer to learning the full truth about the President.