BY JOE HAYDEN

The battle lines between the Michael Cohen forces and the Donald Trump forces have begun to be drawn with no truce in sight.  Extensive media reports and the recent conduct of the parties suggest that Michael Cohen has “crossed the Rubicon” and is more than willing to cooperate and testify against his former client, Donald Trump.  The Cohen forces have released to the media a copy of a tape recording that Cohen made of Trump as well as a leaked statement that Cohen can testify that Donald Trump was aware of the Trump Tower meeting with the Russians.  In response, Trump forces have started a volley of negative attacks on Cohen casting him as a scoundrel, a liar, and a pathological manipulator desperate to make a deal.  It will be difficult for either side to turn back at this point. 

There is an old saying among criminal trial lawyers I first heard in Hudson County:  “You are indicted by your  enemies, but convicted by your friends.”   At first blush, testimony against Trump by his former lawyer for over 12 years would appear to be a potential knock-out blow, but only time and a few variables will tell if Cohen’s cooperation merely ends up as a glancing blow.   

First, it is not yet clear that Cohen has a deal or can achieve a deal with the federal prosecutors acceptable to him.  The primary investigative body for Cohen is the United States Attorney for the Southern District of New York, but Cohen may also have exposure in some portion of Mueller‘s probe or even on tax issues.  Hence, he will have to obtain a plea bargain which achieves a “global resolution” of his criminal exposure with all federal prosecutors.  The United States Attorney’s Office for the Southern District generally takes a hardnose attitude as to the charges it allows cooperators to plea to, and Cohen’s team may not like the offer on the table.  The fact that Cohen‘s attorney released a tape and information his client could testify to suggests they are still negotiating rather than settled on a deal.  Prosecutors may be offended by a would-be cooperator who negotiates in public and this tactic may impede a deal.   

Cohen will surely have much to trade with.  He was Donald Trump‘s personal attorney for 12 years, and handled all his dirty work – so much so that he is known in the media as Trump’s “fixer.”  What he knows about paying off women who have brought or threatened to bring civil actions against Trump is the least of his value.  His real value will be what intimate first-hand knowledge he has of Trump’s financial dealings, particularly in Russia, as well as his knowledge of any collusion with Russia during the campaign and obstruction of justice after the election.   Any obstruction of justice as to the Russian collusion would be right in the bull’s eye of what Mueller is looking for (This is where he could assume the role of John Dean of Watergate fame.)  Interestingly, his ability to generate investigative leads for yet undiscovered financial dealings by Trump with the Russians may also substantially increase his value.  

If Cohen does strike a deal, the issue for the prosecution will be how to corroborate his allegations.  There will be numerous rounds of exhaustive interrogation of Cohen by the prosecutors and agents working the various cases, but then the challenge will be to find credible corroboration from other witnesses, emails and any tapes that Cohen or others made.  Numerous people interviewed have said they were shocked over how Mueller’s investigative team seems to know “everything” about what happened. 

Because of his intimate knowledge of Donald Trump and the financial dealings, Cohen‘s testimony could be a game changer in the Mueller probe.  But make no mistake, he will be a very vulnerable witness when cross-examined.  He will have substantial exposure for his own conduct as a “fixer” for Trump and hush money payments to women Trump had a relationship with.  His lobbying activities for exorbitant fees after Trump became president may raise serious ethical and legal issues.  Trump has suggested in a tweet that Cohen may be trying to cover up illegal activities with his “taxi-cab” companies which could raise serious state and federal tax problems.  There may also be a host of other financial dealings where Cohen has exposure, and just like he may have dirt on Trump, his client will also have dirt on him.  Finally, if Cohen ever tried to send a backchannel message to Trump seeking a pardon which was rejected, he will be confronted with this during his testimony under oath at any hearing and asked if he is selling his testimony to the highest bidder. 

If he cuts a deal and cooperates, the next significant variable is in what forum will Cohen’s testimony be utilized.  In an impeachment proceeding, there will be a heavier burden of persuasion than in a court of law where a decision would be based on a factual finding rather than political judgment. 

All of these are fascinating issues, stay tuned.   

InsiderNJ’s legal analyst, Joe Hayden is a veteran defense attorney from New Jersey.