Thursday, February 28, 2019 2:30 pm
Fact-checking the Michael Cohen hearing
Glenn Kessler and Salvador Rizzo | The Washington Post
President Trump's former personal lawyer testified before the House Oversight Committee on Feb. 27.(Meg Kelly,Joy Yi/The Washington Post)
A colleague said The Fact Checker faced an existential question about the Michael Cohen testimony: What if a convicted liar says he's telling the truth about a person he says is a liar?
Actually, a person's impression of the Cohen testimony mainly falls in the realm of political commentary, which is not our purview. But here's a roundup of statements made at the hearing that were wrong or subject to dispute.
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"Remember how all this started. The Clinton campaign hired Perkins Coie law firm, who hired Glenn Simpson, who hired a foreigner, Christopher Steele, who put together the fake dossier that the FBI used to go get a warrant to spy on the Trump campaign." – Rep. Jim Jordan, R-Ohio
Actually, it's been well established more than a year ago – by a House committee led by Republicans – that the investigation into possible connections between the Trump campaign and Russian entities did not start with the disputed dossier.
A memo written by the staff of House Intelligence Committee Chairman Devin Nunes, R-Calif., declassified by President Donald Trump, said that the FBI opened a counterintelligence operation in July 2016 because of allegations concerning another Trump adviser, George Papadopoulos. He came to the attention of the FBI because he had told an Australian diplomat that the Russians had obtained thousands of Clinton's emails. He pleaded guilty to lying to the FBI and cooperated with the special counsel.
Papadopoulos was never mentioned in any of the reports written by former British intelligence officer Christopher Steele, collectively known as the dossier, for the firm Fusion GPS (Jordan correctly noted the firm headed by Glenn Simpson was retained by Perkins Coie, a law firm for the Democratic National Committee and the Clinton campaign.) That material only became known to the FBI after the earlier investigation was started.
Moreover, while Jordan claimed the FBI obtained a warrant to spy on the Trump campaign, that's false.
The warrant was on Carter Page, who no longer worked for the campaign when the warrant was issued. Over the summer of 2016, he attracted attention for remarks he made in Moscow that were critical of U.S. policy from his trip. On Aug. 5, the Trump campaign said Page was an "informal foreign policy adviser" who "does not speak for Mr. Trump or the campaign." By Sept. 23, a campaign spokesperson denied he was ever part of the campaign. Three days later, Page announced he was taking a leave of absence from the campaign.
It was not until Oct. 21, nearly a month later, that the FBI sought and received a FISA court order to begin surveillance on Page.
There is little dispute over the finding by U.S. intelligence agencies that Russia developed a clear preference for Trump – and that Russian entities hacked into Democratic National Committee and Clinton campaign accounts to obtain emails that were then leaked to undermine her campaign.
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"This is the first time in the history of Congress we have someone testifying here who has already been convicted of lying to Congress, and congratulations to being the first in Congress to do that." – Rep. Jody Hice, R-Ga.
"This might be the first time someone convicted of lying to Congress has appeared again so quickly in front of Congress. Certainly it's the first time a convicted perjurer has been brought back to be a star witness in the hearing." – Jordan
Jordan was more careful here, putting a time element on his statement, making it accurate. But Hice must have missed the testimony on Feb. 13 by former Ronald Reagan aide Elliott Abrams, who pleaded guilty on Oct. 7, 1991, to two misdemeanor charges of withholding information from Congress about secret government efforts to support the Nicaraguan contra rebels during a ban on such aid.
Abrams, now Trump's special envoy on Venezuela, got into a fiery exchange with Rep. Ilhan Omar , D-Minn., who said he could not be trusted because he had earlier misled Congress.
Abrams was pardoned by President George H.W. Bush and went up to serve in high diplomatic positions during the George W. Bush administration. He was never disbarred, unlike Cohen.
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"I did not want to go to the White House. I was offered jobs." – Cohen
This is one of the most disputed parts of Cohen's testimony, and we cannot reach an immediate judgment given the contradictory information. While Republicans did not challenge much of his testimony, they sought to portray him as a disgruntled former aide to the president with an ax to grind.
Cohen insisted that he only wanted to be the president's personal attorney, available on call while living in New York with his family. But there's plenty of evidence to the contrary.
But as Republicans noted, the sentencing memo filed by prosecutors in New York said: "During and after the campaign, Cohen privately told friends and colleagues, including in seized text messages, that he expected to be given a prominent role and title in the new administration. When that did not materialize, Cohen found a way to monetize his relationship with and access to the President."
Cohen pushed back and said the memo was "not accurate." He insisted, "I did not want to go to the White House. I retained and I brought an attorney and I sat with Mr. Trump – with him for well over an hour, explaining the importance of having a personal attorney, that every president has had one, in order to handle matters like the matters I was dealing with."
However, there is plenty of reporting that says otherwise. CNN reported: "Cohen told associates he believed he could be named White House chief of staff. Cohen was crushed when he was not offered the job, which went to Priebus, the sources said." Our colleague Josh Dawsey also tweeted: "Michael Cohen did want a job in the White House, per lots of Trump people at time. Reince Priebus [Trump's first chief of staff], others were very skeptical of him even visiting building. POTUS told Cohen he would try to bring him in. (He didn't.)"
Eric Trump tweeted: "Michael was lobbying EVERYONE to be 'Chief of Staff.' It was the biggest joke in the campaign and around the office. Did he just perjure himself again?" Darrell Scott, a member of Trump's transition team, tweeted: "Michael Cohen asked...no, BEGGED me REPEATEDLY, to ask the POTUS to give him a job in the Administration! He's STILL lying under oath!"
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"I'm going to come back to the question I asked before with regards to your false statement that you submitted to Congress. On here it was very clear that it asked for contracts with foreign entities over the last two years. Have you had any foreign contract with foreign entities whether it's Novartis or the Korean airline or Kazakhstan BTA Bank? Your testimony earlier said that you had contracts with them. . . . Why didn't you put them on the form? It says it's a criminal offense to not put them on this form for the last two years. Why did you not do that?" – Rep. Mark Meadows, R-N.C.
Witnesses testifying before House committees are required to disclose payments or contracts from foreign governments that may be pertinent to a hearing.
Meadows claimed that Cohen made a "false statement" to Congress because he listed no such payments in his "Truth in Testimony" disclosure form for his hearing. The form says it's a crime to "knowingly" submit false information.
Cohen collected payments from foreign companies while he was offering his services as a highflying consultant after Trump took office (he says it wasn't lobbying work). Clients paid him through a company called Essential Consultants LLC.
Meadows mentioned the Swiss drugmaker Novartis; a Korean airline (it's actually an aviation firm, not an airline, named Korean Aerospace Industries); and BTA Bank, which is based in Kazakhstan.
"Those foreign companies that you're referring to are not government companies," Cohen told Meadows.
"It says nongovernmental, Mr. Cohen," Meadows responded. "You signed it."
This is inaccurate. House Oversight and Reform Committee Chairman Elijah E. Cummings later clarified that the form "requires you to list your contracts or payments originating from a foreign government, not from all foreign entities" and the form itself asks for disclosure of "any contracts or payments originating with a foreign government and related to the hearing's subject matter."
The use of the phrase "originating with" is noteworthy. Cohen said his lawyers advised him not to list these contracts on the form because they were not made directly by any foreign government. Korean Aerospace Industries, which paid Cohen $150,000, is majority-owned by the South Korean government, as The Washington Post has reported.
Although this aviation firm is not a government entity, does the $150,000 it paid Cohen count as "originating from" the South Korean government, which owns a majority of KAI?
Meadows said the government of Kazakhstan owns 81 percent of BTA Bank, but we couldn't find any corroboration for that number and a spokesperson for the congressman did not respond to our inquiry.
However, Cohen testified at the hearing that BTA Bank is "a Kazakh-owned entity."
This is how Cohen explained the issue after conferring with his attorneys during a break:
"My four attorneys continue to believe, as they did before, that the language of the 'Truth in Testimony' form, which I was given and signed just right before this hearing, and which requires disclosure of any contracts or payments from foreign governments in the last two years, did not apply to my work for BTA Bank, which is a Kazakh-owned entity. They advised that had entities been intended for disclosure, that word would have been in the disclosure definition. However, if the committee's counsel has a different view that I should disclose my contract with BTA Bank, we'd be willing to do that."
Cohen distinguished "entities" from "governments," but conceded that he may have to amend his form to include the BTA Bank contract. He didn't mention KAI. Novartis is a publicly traded company and not majority-owned by any foreign government.
The form says it's a crime to "knowingly" submit false information.
"I want to understand clearly: You sought the advice of your counsel, is that right?" Cummings asked Cohen about the form. "That's correct," he said. "And your counsel advised you to say what you just said, is that right?" Cummings continued, referring to the explanation above about BTA Bank. "That's correct," Cohen said.
"And you know that to be the truth, is that right?" Cummings asked. Cohen said, "Yes, sir." In other words, Cohen said he did as his lawyers told him and wrote down what he believed to be true on the form. (His contracts with BTA Bank, KAI and Novartis had been reported before the hearing.)
"Perhaps a way to solve this is for the chairman to request Mr. Cohen give to this committee all the foreign payments that he has received over the last two years whether they're an entity or a government," Meadows said at one point.
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"This is the very man that, didn't you wiretap him illegally? Did you not wiretap President Trump without his knowledge?" – Rep. Ralph Norman, R-S.C.
When he was Trump's personal attorney during the 2016 campaign, Cohen secretly recorded a conversation with his client about a hush-money payment to former Playboy model Karen McDougal, who claims she had an affair with Trump. Norman at one point suggested Cohen broke the law by recording Trump without his knowledge. But in New York state, that's legal.
"This is the very man that, didn't you wiretap him illegally? Did you not wiretap President Trump without his knowledge?" Norman asked.
Cohen said he also made recordings of conversations with other clients, and added, "I believe that they're legal." Norman asked, "Did you tell them?" Cohen said, "In New York state, you don't have to do that."
New York is a "one-party consent" state. Its penal code makes it a crime to intentionally record a conversation "without the consent of at least one party thereto." Since Cohen was a party to these conversations, he could record them legally without notifying his clients.
Rep. Kelly Armstrong, R-N.D., noted that it might still be unethical for a lawyer to record clients without their knowledge.
New York's code of conduct for attorneys doesn't say anything specifically about secretly recording clients, but it says "a lawyer shall not knowingly reveal confidential information" without a client's "informed consent." This covers information "protected by the attorney-client privilege" and information "likely to be embarrassing or detrimental to the client if disclosed." (Cohen released the Trump recording.)
There are some exceptions to this rule, including one that allows disclosing confidential information "to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud."
Whether it would apply or not, Cohen has been disbarred already for his crimes.
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"Earlier you said, 'I spent last week looking through boxes to find documents' that would support your accusations. Were those boxes good, sir? Are they - where are those boxes? Are they in your garage?" – Rep. Clay Higgins, R-La.
Higgins, a former police officer, pressed Cohen in two separate exchanges about the boxes of documents that Cohen said he used to prepare his explosive testimony.
Cohen said they were in storage.
"And are these not boxes that should have been turned over to investigative authorities during the many criminal investigations you've been subject to?" Higgins continued.
Cohen said, "Sir, these are the boxes that were returned to me post the raid."
In other words, it's the same set of boxes of documents that the FBI seized in April 2018 when they secured a warrant and raided Cohen's office. Where else would the FBI find detailed evidence for the litany of crimes Cohen pleaded guilty to, including tax evasion, false statements to banks and illegal campaign contributions to benefit Trump?
No matter. "If they included data pertinent to crimes that you've committed, should they not have been turned over and remanded to investigative authority?" Higgins asked. Cohen, who had just explained they were the same boxes seized by the FBI, responded that he didn't understand the question.
Higgins apparently wasn't satisfied and later resumed his line of questioning. "Why have they not been turned over to the investigating authorities looking into some of the many criminal activities that you're allegedly cooperating in? Where are these boxes?" Higgins asked. "Who knows? Where is this treasure of evidence?"
"The boxes that I am referring to, the boxes that were in my law office when the FBI entered and seized documents," Cohen said.