Sure seems like it to the Wall Street Journal, and it will certainly seem that way to most others too. In public testimony to the House Oversight Committee last week, Michael Cohen declared categorically that “I have never asked for, nor would I accept, a pardon from President Trump.” That came in Cohen’s opening statement (at the 55-second mark):
Overnight, however, Cohen attorney Lanny Davis told quite a different story. Cohen had Davis ask about the potential for a pardon after an FBI raid, approaching Rudy Giuliani about the possibility:
Michael Cohen, a former lawyer for President Trump, directed his attorney last spring to inquire about the possibility of a presidential pardon, weeks after federal agents raided his properties, Mr. Cohen’s lawyer said Wednesday, apparently contradicting his testimony before a House committee last week. …
Lanny Davis, a lawyer for Mr. Cohen, said Wednesday that in the months after the FBI raid, Mr. Cohen was open to a pardon from the president.
“During that time period, he directed his attorney to explore possibilities of a pardon at one point with Trump lawyer Rudy Giuliani as well as other lawyers advising President Trump,” Mr. Davis said. He referred to the discussions with the president’s lawyers as the “ongoing ‘dangling’ of a possible pardon by Trump representatives privately and in the media.”
I for one am shocked, shocked that a man convicted of lying to Congress provided false and/or misleading testimony to Congress again. His declaration that “I have lied but I am not a liar” was so compelling, no?
Davis tried to spin Cohen’s opening statement as current truth:
“After July 2, 2018, Mr. Cohen authorized me as a new lawyer to say publicly Mr. Cohen would never accept a pardon from President Trump even if offered. That continues to be the case,” Mr. Davis said Wednesday. “His statement at the Oversight Hearing was true—and consistent with his post-joint defense agreement commitment to tell the truth.”
Er, no it’s not. Cohen explicitly stated that “I had never asked for” a pardon, not that he hadn’t asked for one recently. His testimony (and Davis’ explanation) are at least seriously misleading, if not outright false. Davis acknowledges that Cohen directed his attorneys at the time to ask about a pardon. That’s morally the same thing as asking about one himself, and might suffice legally if anyone decided to prosecute this as a point of perjury. At the very least, it was outrageous fabulism under oath for Cohen to paint himself as a courageous Resister!® by laying out this claim.
In that context, how ironic was it to have Brian Williams on the MSNBC breaking-news desk to handle this special report on Davis’ admission?
So does this put Cohen in more legal trouble? Lost in this discussion is how infrequently lying to Congress is prosecuted, even when the lies are material. James Clapper not only didn’t get prosecuted for flat-out lying to Congress about domestic surveillance, he didn’t even lose his job as ODNI. Cohen got prosecuted for it for the same reason that Paul Manafort and others got prosecuted under the Foreign Agents Registration Act: because he got caught up in larger issues and prosecutors needed pressure points to get cooperation.
Of course, Cohen seems singularly determined to tempt fate (or federal prosecutors, anyway) when on Capitol Hill. Don’t forget that his wasn’t Cohen’s only lie last week; he also asserted that he’d never campaigned for a job at the White House, which set off widespread scoffing among the media as well as Trump officials. That came in response to examination by Rep. Jim Jordan (R-OH) over his motives, which certainly made that a material statement.
Still, it seems doubtful that the Democrats on Oversight will make a referral for prosecution over either lie. They need Cohen as an attack dog on Trump too much to undermine his credibility even further than it has already eroded. Referring him for prosecution would also raise the very good question again as to what they were thinking by featuring Cohen’s testimony at all after his conviction for lying to Congress, a point Jordan raised at the beginning of the hearing.
One wildcard, though, is the SDNY and the prosecutors that handled Cohen’s plea deal. Could they force Cohen back to court to get resentenced or face new charges even without a referral after watching Cohen baldly lie again under oath? They probably wouldn’t bother, but if they see Cohen as thumbing his nose at them in this doubling-down on perjury, who knows?
Addendum: The Senate is not amused … or impressed.
Senate Intel Chairman Burr declined to discuss what Cohen told his panel about pardons, but he criticized both Lanny Davis and Cohen.
“Lanny and Michael Cohen have a history of not necessarily factual statements – they’re the ones that have to clear that up,” Burr told me.
— Manu Raju (@mkraju) March 7, 2019
Asked if he thinks Cohen lied to Congress again, this time about pardons, Burr said he wouldn’t discuss the closed testimony but added: “It’s time for Michael Cohen to tell the truth and then suffer the consequences for any lies he told then or now.”
— Manu Raju (@mkraju) March 7, 2019