Republicans Committed the Classic Cross-Examination Blunder

Trump’s supporters in Congress did not successfully destroy Michael Cohen’s credibility.

Michael Cohen
Kevin Lamarque / Reuters

Everyone involved in the House Oversight and Reform Committee hearing on Wednesday needed a good lawyer.

Michael Cohen, the convicted felon, disbarred lawyer, and former fixer to Donald Trump, needed a trial lawyer to rein in his mugging for the camera and his tendency to take cheap shots at his detractors, and to remind him of the limits of his own credibility. He needed a stern counselor to elbow him in the ribs, to tell him not to bait the politicians even if they deserved it, and to hiss at him, Stop quibbling over what lobbying for Kazakh banks means. Stop it this instant.

House Democrats needed a good trial lawyer, too, to teach them how to handle a morally bankrupt cooperating witness. As a former prosecutor, I know that your tone has to be stern and your questioning methodical. You have to convey to your audience that although the witness is nobody to admire, he can still offer useful information. If you’re friendly, the jury just thinks you’ve fallen for a con artist. The Democrats treated Cohen like a minor celebrity, perhaps a YouTube star. A trial lawyer would not have simply drawn out Cohen’s incriminating information about Trump, but used Cohen to emphasize the corroborating evidence from Special Counsel Robert Mueller’s investigation that backs up many of his accusations. This was an opportunity to build the outline of a case against Trump. Democrats didn’t. Instead, they triumphantly repeated Cohen’s more salacious accusations, speechified, and uncritically embraced Cohen’s I-am-a-sinner-seeking-redemption narrative. They didn’t hurt his credibility, but they utterly squandered the chance to support it.

House Republicans needed a trial lawyer—or even a moderately bright junior-high mock-trial participant—to tell them how to do anything. Cross-examination is hard. It’s not just barking at the witness. It takes meticulous planning and patience. Republicans could have marshaled Cohen’s many sins of the past to undermine his statements today. Instead, they returned repeatedly to lies and misdeeds he’s already admitted, wallowed in silly trivialities such as the “Women for Cohen” Twitter account, and yelled. The effect was to make an unsympathetic man modestly more sympathetic. Republicans committed the classic cross-examination blunder: They gave the witness the opportunity to further explain his harmful direct testimony. They provided Cohen with one slow pitch up the middle after another, letting him repeat the cooperating witness’s go-to explanation like a mantra: I did these bad things so often and so long because that’s what it took to work for your guy. I have seldom seen a cross-examination go worse.

If the hearing’s participants needed trial lawyers, its absent subject needs them even more. Whether the danger is looming impeachment hearings or the special counsel’s investigation, the president of the United States is in the soup.

Cohen put Trump squarely at the middle of the harebrained scheme to hide hush-money payments to Stormy Daniels. He corroborated that tale with checks from Trump and the Trump Organization. The odd and haphazard way Trump reimbursed Cohen helps make the case that Trump knew the entire ruse breached campaign-finance laws—if not clearly enough for a federal jury, at least enough for a House committee on impeachment. Cohen offered enough specific examples of Trump Organization financial skulduggery to launch a thousand subpoenas. He confirmed that Trump’s lawyers knew about, and even edited, Cohen’s prior, false statements to Congress, suggesting a possible conspiracy to obstruct justice and lie to Congress. He also claimed that Trump talked to Roger Stone about WikiLeaks in advance of the release of hacked Democratic National Committee emails. That’s not itself illegal or collusion—receiving dirt, even eagerly, is not against the law—but it probably contradicts the statements Trump has given under oath to the special counsel, leading to more danger for the president. Finally, Cohen confirmed that the U.S. Attorney’s Office for the Southern District of New York is still investigating Trump for unspecified crimes. Nothing good has come out of the Southern District for this administration.

Team Trump should be worried. Republicans did not successfully destroy Cohen’s credibility. Cohen, while characteristically squirrelly on some subjects, did not exude his customary arrogance. In fact, he probably gained credibility by limiting his accusations—he passed up numerous opportunities to make expansive claims about collusion or salacious ones about sex tapes, focusing instead on relatively narrow allegations. Democrats didn’t help him, but they signaled that they were willing to conduct further investigations based on his word.

Time after time, Trump and his underlings and supporters have stumbled when they’ve missed the difference between court and culture. Stone learned last week that U.S. district court is not like Instagram. Paul Manafort, Rick Gates, Michael Flynn, George Papadopoulos, and Cohen have learned that easy lies offered thoughtlessly in the media scrum can lead to jail time when uttered to FBI agents. Today Republicans had the opportunity to learn—though who can say whether they actually learned anything?—that theatrical committee-hearing tactics are ineffective against a witness trained to withstand cross-examination. Will the president of the United States ever learn that a federal criminal investigation is not a reality show?