As we continue week two of the Donald Trump–indictment watch, questions abound. Is it really going to happen? Did last week’s testimony from lawyer Robert Costello in defense of Trump successfully throw a wrench in the process? Does the testimony on Monday from David Pecker — the former publisher of the National Enquirer who helped arrange the hush-money payment to Stormy Daniels that appears to be at the center of the prospective prosecution — mean that the case is back on track for an indictment? And what, exactly, is the holdup?
The answers to these questions are as elusive at the moment as they are tantalizing, but one thing has become clear: Key witness Michael Cohen and his pathological need for media attention have not been making things easier for the Manhattan district attorney’s office in recent weeks.
The former Trump lawyer has always been a curious figure in this saga. He pleaded guilty to a slew of criminal charges during the Trump administration, including lying to Congress, lying to a bank, tax evasion, and campaign-finance violations based in substantial part on his role paying off Daniels in the final weeks of the 2016 campaign. Cooperating witnesses in criminal prosecutions often have baggage, but the way prosecutors generally try to deal with this is by forcing them to admit responsibility for their own criminal offenses and corroborating as much of their testimony as possible through independent sources of evidence, including other witnesses and documents.
Cohen, however, presents additional challenges. He clearly thinks very highly of himself and seems to have little awareness of his limitations — a toxic combination in both life and the law. He appears constitutionally incapable of telling the same story twice in the same way, though whether that is a function of malice, dishonesty, or some other factor is never entirely clear. He is also obsessed with taking down his former boss Trump, and he has managed to make a second career out of it — both through his podcast and his countless appearances on cable news, which have been crucial to maintaining his public prominence.
The voluminous record of Cohen’s public statements has always been a problem for prosecutors because it creates a risk that he could be confronted with inconsistent or problematic past statements at trial to undermine his credibility. That risk was on full display in what was supposed to be the final stretch leading, at long last, to charges against Cohen’s arch nemesis. Indeed, Cohen has said at least two things in recent interviews that would ordinarily raise red flags for prosecutors working with an important cooperating witness — first, that the cooperator is unwilling to fully accept responsibility for his prior criminal conduct and, second, that even now he is unwilling or unable to be forthright about unhelpful facts.
Take, for example, an interview with Cohen conducted by CNN’s Don Lemon. This was styled as Cohen’s first television appearance following the conclusion of his grand-jury testimony, which, by itself, almost certainly drove prosecutors in the Manhattan DA’s office crazy. Ideally, a key cooperator in a high-profile criminal case would not be talking to the press at all at this point, if ever.
That, however, was not the end of it. At one point in the discussion, Cohen touched on his criminal convictions but suggested that he had in fact been unfairly prosecuted. “One of the things that I think will come out of this investigation,” Cohen told Lemon, “other than the potential indictment of Donald Trump, is a lot of information about how the Southern District of New York dealt with me in my specific case.” Referring to his current lawyer, Lanny Davis, Cohen added, “He has so much information about the weaponization of the Justice Department against me that — there’s nobody else that knows the story better.”
Lemon did not seem to register what Cohen was saying in the moment and moved on, but this was by far the most interesting and potentially consequential thing Cohen said during the sit-down. What exactly did he mean? Davis, for his part, seemed to back Cohen up late last week in an interview with Politico, recalling that at one point in the history of his dealings with his client “Michael was angry because he had been, I think, mistreated by law enforcement in the Southern District, and prosecuted.”
One interpretation of these comments is that Cohen does not actually believe he should have been criminally prosecuted and does not believe he should have had to plead guilty to the litany of federal offenses that now make up his criminal history. If that is the case, it would be difficult to understate how large a problem this would be for his credibility — and for prosecutors. Either he committed the offenses at issue and has accepted responsibility for them, a fundamental prerequisite for a crucial cooperating witness, or he was unfairly railroaded and forced to plead guilty despite being innocent of some or all charges. He cannot have it both ways, and there is no way that Trump’s lawyers, in a trial setting, will let this slide.
Cohen’s slipperiness was on display elsewhere during the discussion. He described his willingness to cooperate with the Manhattan DA’s office as reflecting his newfound commitment to democracy and the rule of law, and he said he had told the federal judge who sentenced him that he would work to help the government. Cohen told Lemon that he did not ask for a cooperation agreement (potentially protecting his legal interests in the future) when he was dealing with the Department of Justice in his own criminal case — in his telling, a signal of his own good faith and public-mindedness.
He left out an important fact, though: The reason he did not have a cooperation agreement with federal prosecutors is that they did not actually believe Cohen had fully cooperated with their investigation. The sticking point was that Cohen would not agree to disclose to them any criminal conduct they had not already uncovered — a prerequisite for cooperation with the Southern District of New York (though not all prosecutors’ offices).
As the New York Times reported at the time, “prosecutors made clear” to the presiding judge “that Mr. Cohen was less useful to their investigation because he would not fully cooperate, therefore he would not reap benefits, such as a government letter on his behalf” advocating for a reduction in sentence. “Had Cohen actually cooperated,” prosecutors told the sentencing judge, “it could have been fruitful,” but because he did not, the government was unable to “fully vet his criminal history” and assess “his utility as a witness.” This is important not only because it undermines Cohen’s claim that he is deeply committed to cooperating with the government — and not only because it is almost certain to come up if Cohen is ever cross-examined — but also because his unwillingness to be completely forthright with Lemon about what happened seemed to reflect a deeper, more problematic relationship with the truth.
In another appearance on Ari Melber’s MSNBC show, Cohen offered Trump’s lawyers more future ammunition. At one point in the discussion, Melber played a clip of Trump lawyer Joe Tacopina attempting to discredit Cohen at length by referring offhand to Cohen’s misconduct “with the medallions and all that stuff.” Cohen began his response to Melber by saying, “Shame on Joe Tacopina. First and foremost, there was no fraud in the medallions. I don’t know even what he’s talking about.”
Here is a good guess: Tacopina was probably referring to the fact that Cohen pleaded guilty to tax evasion in connection with millions of dollars in revenue that he received through taxi medallions he had acquired. The conduct formed the basis for five of the federal charges against him, which makes it very difficult to believe he did not know what Tacopina was talking about. (Again, if Cohen is actually maintaining his innocence on those counts, that would be very bad for the case against Trump.)
Cohen also took aim at Costello, who evidently briefly served as a legal adviser to Cohen. The two now seem to dispute the extent of their relationship, but Costello had been allowed to testify before the grand jury about his dealings with Cohen as the result of an agreement that Cohen executed to waive any attorney-client privilege between the two men. Cohen told Melber that he did not recall such an agreement. “If in fact I waived attorney-client privilege, I’d like to know when, how, where. I don’t recall waiving anything.” Later that night, Costello presented a copy of the agreement with Cohen’s signature in an interview with Fox News’s Tucker Carlson.
The odds that the waiver was a fabrication of some sort, even before Costello presented the document on live television, were very low, whatever one might think of Costello himself. The reason is that prosecutors in the Manhattan DA’s office would have been treading on ethically problematic ground if they had allowed a lawyer to breach his privilege with a former client in the absence of evidence that their dealings had furthered a crime or fraud, which has not been alleged here.
It is not clear whether or to what extent Cohen’s comments — or questions about his credibility more generally — might be playing any role in the apparent delay in the Trump proceedings. Prosecutors may already have reconciled themselves to the notion that Cohen is both central to their prospective case and that he will continue to be a nuisance until the proceeding ends, one way or another, years from now. There is, however, no question that it would be better for the case if Cohen could bring himself to stop talking for the foreseeable future, even if he appears incapable — financially, temperamentally, and psychologically — of exercising some much needed self-restraint.
