Michael Cohen to Testify About His ’Fixer Role’

as millions of Americans watch on TV. Michael Cohen is appearing voluntarily before the House Oversight Committee on February seven, and from his statements to ABC last month, he's prepared to tell all I will be remembered in history as helping to bring this country back together. Joining me is former federal prosecutor Elie Hone, special counsel at Lowenstein Sandler Ellie. That's a high bar that Cohen has set for himself. Can his testimony match up to the hype that's already generated.

I don't know if Michael Cohen. He clearly wants to become this generation's John Dene and I'm not sure if he's up to it. I'm not sure if his testimony is capable of uniting the country In fact, I think what we could see as people driven further apart based on where they already stand. People who believe Trump has committed criminal acts or acts deserving impeachment are going to

want to hear everything Michael Cohen says. They're going to want to credit him, and people who do not believe that are going to say he's a liar and he has bad motives. Looking at it from a prosecutor's point of view, the proof in the pudding really is going to be to what extent is he corroborated? To what extent is there other evidence that backs him up? And I think ultimately Mueller and the Southern District of New York are going to have those answers. John Dene had

the Watergate tapes that were released later. Also, is there a problem in that Cohen is a convicted liar already? So does that put a sort of a damper on his testimony? Sure? And that's what the defenders of Trump will no doubt point out. They'll say he's a liar. He is an admitted liar. He's been convicted of nine different federal crimes now. And this is the kind of dilemma that you work with all the time as a

federal prosecutor. A huge number of federal trials, I think, more than people typically realize, come down to the testimony of cooperating witnesses, people who used to commit crimes with the people they're testifying against now and have struck a deal trying to get a lower sentence, and cases in federal court often turn on them. And what a good prosecutor would do is explain to the jury. Look, first of all, this person is a cooperating witness for a reason.

If they weren't involved in crimes before, they wouldn't be here. And second of all, we the prosecutor, did not choose this person. The person who's on trial chosen when they were committing crimes together. And third, it doesn't matter if you like this person, maybe you don't, maybe you shouldn't. The question, really, though, is do you believe him? And ultimately, I don't think Michael Cohen's testimony in February is going to change a lot of minds from from where they

stand now. But we will learn a lot of new information and ultimate we will be able to measure up if whether what he says sort of comports with common sense and with the other evidence that we know. The chairman of the committee, Elijah Cummings, said they'll be careful not to undermine Mueller's Russia investigation. Does that mean that we'll miss out on some important parts of Cohen's knowledge.

I don't know exactly how that's supposed to work. First of all, I don't know how Elijah Cummings, Representative Commings, thinks he's going to be able to control the Republicans on the committee, who would have every reason to want to blow up Mueller's investigation and reveal things that perhaps aren't ready to come out. So I'm not sure how

he's going to do that. I'm also not not sure how either the House members on that committee, regardless of party, or Michael Cohen himself, are going to know what's in bounds are out of bounds with respect to Mueller. So if I'm looking at this from Mueller's point of view, I'd be concerned that Cohen may say something that may out something that I'm doing. And so the question then is, well,

why would Mueller be okay with this? Because Representative Coming said that Mueller signed off to which I can of a couple of responses. Number One, it's possible Mueller intends to be done and have issued his report by then. Number two it could be the Mueller's approaches looking. I haven't revealed anything to Colin and I shouldn't have, and he doesn't know anything that I need to keep confidential. And I think mother probably would have been smart to

not reveal anything to Michael Cohen. And number three could be he could just think what Cohen can say, whatever he's gonna say, I have my proof. It's it's in hard documents, it's in tapes, it's in emails and texts, and so it doesn't much matter to me what Cohen says. Now, Cohen's going to begin serving a three year sentence for those nine felonies you mentioned on March six. Could his

congressional testimony help to knock the sentence down? It could, and it's his really his last remaining play to do that. There's a rule in the in the Federal books called Rule thirty five, and it basically says that if a prosecutor goes back to a court after sentencing and makes a new motion for a defendant to get a further reduced sentence, then the judge can consider that I've done it.

I've done it only in rare cases, but my and my years as a prosecutor, there would be instances where someone would have been sentenced and then later on they gave us additional cooperation and you go back to the court and you move for reduction. So that's a possibility, and I think that maybe what's in Michael Cohen's head. Sure he wants to be John Dene, but he's also probably got more selfish motives as well. The question, just

as is which prosecutor is going to do that. You need a prosecutor to go in and make that motion. Southern District. My old office has made clear they're not going to. They wrote Cohen a lukewarm at best sentencing memo. Mueller wrote him a more positive sentencing memo. So it's possible. But then again, Mueller doesn't really benefit by Cohen going into Congress and testifying. So he needs to find a sponsor.

He needs to find a prosecutor willing to go into court and say, okay, judge, let's consider a little a little time off for this guy. Let's discuss the Mulla report that everyone is waiting for. There are reports that the President's legal team is getting ready for an argument that a large part of the work is protected by executive the privilege might that work with the current Supreme Court get ready for a lot of executive privilege talk

and analysis this year. I think it's going to be a key term that we're going to use a lot, and I think it's going to be a key term that's going to determine how things like like this big question about the Muller Report come out. Executive privilege basically is the idea that certain communications that a president has with his top advisors need to remain secret, should not

be revealed to the public. Richard Nixon made this argument in nineteen seventy four when he was trying to prevent disclosure of his tapes that he had made, and the Supreme Court in nineteen seventy four ruled against Nixon eight zero one Justice then Justice William Ranquist recused himself, but the other eight unanimously said, Yes, executive privilege exists. It's a real concept. However, you President Nixon cannot use it here because it's designed to protect our national security. Secrets

are military secrets. It's not designed to insulate somebody generally against potential criminal exposure. Now, as you said, of course, our entire Supreme Court has turned over since then, and we have a different ideological Supreme Court. So I don't think it's a foregone conclusion that this Supreme Court would reach the same result as the Court in seventy four. But looking at the nine decision, I don't see any

meaningful distinction between then and now. Some people have said, well, that was tapes, this could be testimony, or this could be emails or documents. But I don't see a meaningful distinction between one form of evidence and another. All Right, we'll see the real value of precedent, possibly this year. Thanks so much, Ellie. That's former federal prosecutor Ellie Honig. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

and on Bloomberg dot com slash podcast. I'm June Bolso. This is Bloomberg