There was one consistent talking point from Republicans on the House Government Oversight Committee on Wednesday, from President Donald Trump, from presidential and White House spokespeople, and from conservative pundits:
Michael Cohen already plead guilty to lying to Congress last time around, so no one should believe a single word he says this time.
But what if his past lies were not a continuation of his misguided loyalty to Donald Trump and instead were part of a larger scheme by President Trump and his attorneys to obstruct justice with Cohen being the fall guy if it all went bad?
Sure, Cohen still told the lies, but most people will say anything when there is a gun (even if only a figurative one) pressed to their temple.
In his prepared statement on Wednesday, Michael Cohen wrote,
“And he made it clear to me (that Trump wanted him to lie) because his personal attorneys reviewed my statement before I gave it to Congress.”
The full transcript of that prepared statement can be found here.
And in case you were curious about the trove of documents Michael Cohen presented to the Committee, they can be viewed here.
Many of you are probably wondering, as I was, why would Donald Trump’s personal attorneys be reviewing Michael Cohen’s statement to the Special Counsel when Donald Trump is the subject of the Special Counsel’s investigation?
The answer lies in an odd legal tool known as a joint defense agreement.
Maria Glover, law professor at Georgetown University, describes it this way,
“A joint defense agreement is just an agreement that various defendants are going to share what would otherwise be confidential information. Normally anything that you say to your attorney in the course of legal representation is protected from disclosure under the attorney-client privilege. The joint defense agreement is created by the existence of a common legal interest that would enable defendants, if they agree among one another to keep information confidential that is shared, that that common legal interest applies to give them that attorney-client protection. So, if you say something to your co-defendant’s attorney in the context of a joint defense agreement, your communication is protected with regard to that other attorney as if he were your own attorney.”
In simple terms, when multiple people are involved in the same defense, rather than each fighting their own battles and risking one party revealing something that might be used against another involved party, all the parties work together sharing information and defense strategies making all their interactions and shared information privileged.
One nice part about the cirlce of trust is that those on the outside can’t see who is inside. In an interview in July 2018 with Dana Bash, Trump attorney Rudy Giuliani refused to discuss who was a party to the joint defense agreeement and who was not.
Look at the discussion on Wednesday between Congressman Jamie Raskin (D-MD) and Cohen on the issue. Raskin is a member of the House Government Oversight Committee.
“You said you lied to Congress about Trump’s negotiations to build his Moscow tower because he’d made it clear to you that he wanted you to lie. So, this is a pretty breathtaking claim, and I just want to get to the facts here. Which specific lawyers reviewed and edited your statement to Congress on the Moscow tower negotiations, and did they make any changes to your statement?”
“There were changes made, additions. Jay Sekulow for one.”
“Were there questions about the timing?”
“There were several changes that were made, including how we were going to handle that message. Which was — the message, of course, being the length of time that the Trump Tower Moscow project stayed and remained alive.”
“That was one of the changes?”
Raskin’s colleague on the committee, John Sarbanes (D-MD) followed up.
“Who at the White House reviewed your testimony?”
“I don’t know the answer to that. The document was originally created by myself along with my attorney at the time. … There was a joint defense agreement, so the document circulated around. I believe it was also reviewed by Abbe Lowell, who represents Ivanka [Trump] and Jared Kushner.”
“Why did you provide the testimony to the White House?”
“It was pursuant to the joint defense agreement that we were all operating under.”
Now, think back to the BuzzFeed bombshell from mid-January where BuzzFeed reported Donald Trump told Michael Cohen to lie.
What if they were not wrong? What if they just had the minor details a little fuzzy?
As I argued at the time, the authors of the BuzzFeed article are not some gossip site lightweights. Anthony Cormier won 2016 Pulitzer Prize for Investigative Reporting and Jason Leopold is 2018 Pulitzer Prize finalist for international reporting.
If Donald Trump objected to what Michael Cohen wrote in the initial draft of his statement to the Special Counsel, and Trump told Cohen to give the statement to Trump’s personal attorney (Jay Sekulow) for editing, would Cohen have been wrong to feel that the revised statement (especially in the context of a joint defense agreement) provided back by Sekulow was the way Donald Trump was telling Cohen to testify?
If so, BuzzFeed was right and deserves an apology for being savaged publicly for their alleged mistake.
And if so, Cohen still lied, but on orders from President Donald Trump. Sure, they may have been implied orders and not direct orders, but a good soldier knows what his commanding officer is instructing him to do even if he is not verbally receiving the command.
That would mean Trump and his legal team suborned perjury, or at the very least, conspired to suborn perjury, a charge which can be prosecuted irrespective of whether perjury has been committed. It would also mean Trump and his team obstructed justice. And as with suborning perjury, the Mueller investigation does not need to find collusion occurred between the Trump campaign and Russia for Team Trump to have obstructed justice during the course of the investigation.
At this rate, Donald Trump might be better off staying in Vietnam.
After all, the United States does not have an extradition treaty with Vietnam.