Michael Cohen won’t testify in a House Oversight hearing next month after all, and his attorney Lanny Davis wants Rudy Giuliani charged for it. Yesterday, Davis announced Cohen’s withdrawal of an offer to voluntarily appear at the hearing, citing “threats” against his family:
Michael Cohen, President Trump’s former personal lawyer, will not testify before Congress next month, one of his attorneys said Wednesday — which could quash, at least temporarily, liberals’ hopes for a public hearing in which Trump’s ex-fixer airs the president’s dirty laundry.
Lanny J. Davis, an attorney for Cohen, said in a statement, “Due to ongoing threats against his family from President Trump and Mr. [Rudolph W.] Giuliani, as recently as this weekend, as well as Mr. Cohen’s continued cooperation with ongoing investigations, by advice of counsel, Mr. Cohen’s appearance will be postponed to a later date.” Cohen was to appear before the House Oversight Committee on Feb. 7.
“This is a time where Mr. Cohen had to put his family and their safety first,” Davis said.
It is not clear to which “threats” Davis was referring, and Davis declined to provide more detail. A person familiar with Cohen’s account said the alleged threats have not been reported to law enforcement.
The “threats” apparently came from Giuliani — on national television. Davis claims that Giuliani’s suggestion on CNN last Sunday that Cohen’s father-in-law might be involved in organized crime amounted to a threat. That would make Giuliani guilty of witness tampering, Davis argued earlier today on Good Morning America:
JUST IN: Michael Cohen's lawyer blasts Rudy Giuliani, accuses him of "witness tampering."
— ABC News (@ABC) January 24, 2019
“Calling out a man’s father in law and wife in order to intimidate the witness is not fair game and it needs to be investigated,” Davis told ABC News’ chief anchor George Stephanopoulos in an interview Thursday on “Good Morning America.”
Davis was referring to Giuliani’s remarks during an appearance on CNN on Sunday, in which he said that Cohen’s father-in-law, “a Ukrainian,” “may have ties to something called organized crime.” A couple days earlier, President Donald Trump wrote on Twitter to “watch” Cohen’s father-in-law.
“Mr. Trump has immunity from indictments, so it’s alleged or argued in the Justice Department. 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 said on “GMA.”
Er … good luck with that one. Here’s the exchange between Giuliani and Jake Tapper on State of the Union, in which Tapper also wondered whether Trump or Giuliani were attempting to intimidate a witness:
TAPPER: OK. But let me ask you a question. You’re talking about these threats that the president did not commit, and as to why that would be inappropriate, but the president has not done that. The president is repeatedly calling publicly, on Judge Jeanine’s show, on Twitter, he is repeatedly calling for an investigation into Michael Cohen’s father-in-law ahead of Michael Cohen’s testimony before Congress. By your own definition, isn’t that obstruction…
GIULIANI: No, it’s defending himself.
TAPPER: … or attempting to intimidate a witness?
GIULIANI: No. No. Now, if you — if you made that obstruction, I can’t defend anybody. [crosstalk] No, wait, now. Wait, wait. Jake, Jake, we are so — we are so distorting the system of justice just to get Donald Trump, it’s going to hurt us so much.
TAPPER: So, it’s OK to go after the father-in-law?
GIULIANI: Now — now, of course it is, if the father-in-law is a criminal. And the Southern District of New York, in the plea, wanted him to go to jail and said he’s lying. They don’t buy the special counsel’s approach. They say he’s lying because he’s holding back information that is far more damaging than the lies that he is sharing with them now. Now, what is that information about?
GIULIANI: It’s about his father-in-law. We talked about Ukrainians. His father-in-law is a Ukrainian.
TAPPER: That’s not a crime.
GIULIANI: His father-in-law has millions and millions — of course it’s not. I’m telling you, he comes from the Ukraine. This reason that is important is, he may have ties to something called organized crime.
The statute for witness tampering (18 USC 1512) does offer broad enough language for lots of prosecutorial discretion on what might constitute tampering. Here’s paragraph (b) with its subclauses:
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process …
shall be fined under this title or imprisoned not more than 20 years, or both.
Theoretically, it’s possible to argue that Giuliani’s accusation about Cohen’s father-in-law amounts to a threat that caused a delay or prevention of testimony in an official proceeding. Claiming that those remarks amount to a threat is a real stretch, however. Giuliani doesn’t have any authority to act against Cohen’s father-in-law. Trump does — he could order the Department of Justice to investigate him, although it’s tough to believe he’d be that stupid — but Giuliani is a private-sector attorney, not a government official. About the only “threat” this constitutes is the threat of a mud-throwing contest.
And that’s where the problem lies for Davis. His client has been in a mud-throwing contest with Trump for weeks, talking publicly about Trump and claiming credibility for the accusations he’s been making. Trump and his legal team has at least some right to call Davis’ credibility into question. If Cohen was withholding evidence from the SDNY as Giuliani claims, then it’s fair game to discuss why while Cohen’s engaging Trump in public debate. And the SDNY did tell the court in Cohen’s sentencing recommendation that he had refused to cooperate on other “uncharged crimes”:
Indeed, his proffer sessions with the SCO aside, Cohen only met with the Office about the participation of others in the campaign finance crimes to which Cohen had already pleaded guilty. Cohen specifically declined to be debriefed on other uncharged criminal conduct, if any, in his past. Cohen further declined to meet with the Office about other areas of investigative interest. As the Court is undoubtedly aware, in order to successfully cooperate with this Office, witnesses must undergo full debriefings that encompass their entire criminal history, as well as any and all information they possess about crimes committed by both themselves and others. This process permits the Office to fully assess the candor, culpability, and complications attendant to any potential cooperator, and results in cooperating witnesses who, having accepted full responsibility for any and all misconduct, are credible to law enforcement and, hopefully, to judges and juries. Cohen affirmatively chose not to pursue this process. Cohen’s efforts thus fell well short of cooperation, as that term is properly used in this District. …
Lastly, Cohen places heavy reliance on his provision of information to law enforcement. (Def. Mem. at 1-5). To be sure, this case is in some respects unique, and Cohen’s decision to plead guilty and provide information to law enforcement in matters of national interest is deserving of credit. Indeed, it is the principal reason the Office is not seeking a Guidelines sentence here. But as noted in more detail above, Cohen was well aware of the standard debriefing process in which cooperators in this District regularly participate, and declined to participate. While he answered questions about the charged conduct, he refused to discuss other uncharged criminal conduct, if any, in which he may have participated.
What may have actually triggered Cohen’s withdrawal was that Giuliani signaled that Republicans would start asking questions about those other areas of “investigative interest” on which Cohen refused to cooperate. Does that include Cohen’s father-in-law? The “threat” seems to have had an impact.
Giuliani probably doesn’t need to hire a criminal attorney for himself on this basis. But he might need an attorney to defend him in a slander lawsuit if those remarks about Cohen’s father-in-law turn out to be baseless. Cohen’s a public figure, but his father-in-law isn’t, and it wouldn’t be all that tough to assign malice to Giuliani’s accusation if it turned out to have no basis in fact at all. The discovery on that lawsuit would be spectacular.