Is Congress Putting Mueller’s Probe At Risk By Subpoenaing His Witnesses?

January 25, 2019 6:00 a.m.

This post has been updated to reflect the response from a spokesperson for House Intel chair Adam Schiff (D-CA).

It’s no surprise that now that Michael Cohen has flipped on the President, and has pleaded guilty to lying to Congress, that lawmakers are eager to talk to him. The Senate Intelligence Committee subpoenaed him on Tuesday, while members of House Intelligence are floating to do the same. Cohen has for years served in Trump’s inner circle as his fixer, and his decision last year to cooperate in special counsel Robert Mueller’s investigation as well as other federal investigations has made him perhaps the greatest threat to Trump’s presidency and his businesses.

The move, nonetheless, still raises concerns among former federal prosecutors who are wary of the risks such congressional testimony could bring to the ongoing investigations, which include the probe in New York into hush money payments made to alleged paramours of Trump.

“I feel fairly confident in saying that both Mueller and the [Southern District of New York] prosecutors are not happy with the thought that Cohen is going to, at least in theory, testify in front of Congress,” Patrick Cotter, a former federal prosecutor, told TPM.

Congressional Democrats, and the Republicans operating in good faith in investigating Russia’s election meddling, are facing an oversight obligation to create a public record of what happened in 2016, particularly with fears that the Trump administration might seek to suppress Mueller’s own findings. Questions remain, though, about how lawmakers will try to mitigate the potential downsides of compelling Cohen and other Russia probe witnesses to testify.

The Senate Intelligence Committee’s subpoena of Cohen — which came after Cohen postponed voluntary testimony in front of the House Oversight Committee — may only be just one example of witnesses called to testify to Congress who also cooperated with ongoing federal investigations.

“There are risks, even if Mueller is on board with certain questions being asked,” said Randall Samborn, a former prosecutor who served as a spokesperson for the Patrick Fitzgerald investigation into the Valerie Plame leak.

“If you’re in a forum where he can’t control the questioning and that witness is compelled to answer, there could be some collision of interests that can definitely muddy the waters,” Samborn said.

A spokesman for special counsel Robert Mueller declined to comment, as did Lanny Davis, who’s representing Cohen in the congressional investigations. Spokespeople for the the Senate Intelligence Committee’s Republican chair, Richard Burr (SC) and vice chair did not respond to TPM inquiries. A spokesman for the House Intelligence Committee Chairman Adam Schiff (D-CA) pointed to Schiff’s earlier comments this week that his committee would “like [Cohen] to come in either voluntarily or if necessary by subpoena.”

In almost any situation — regardless how high-profile or politically sensitive a federal investigation is — prosecutors would be resistant to the idea of their witnesses saying anything under oath, or even just publicly, outside of the forums in which the feds want their testimony.

“No prosector ever wants a witness to go on the record more than necessary,” said Paul Rosenzweig, who worked on the Whitewater investigation. “You want the story that they tell — at trial, say — to be the only time they tell the story under oath, so there’s no room for inconsistencies, no changes, nothing.”

Currently, it appears the Senate Intel plan is to question Cohen behind closed doors. But it’s unclear how long his testimony would would remain private before public release, or how it will be protected from leaks. If details do become public, the risks to any relevant federal investigations only grow. While the Senate Intelligence Committee’s investigation has been done more quietly than those of other committees’, there is still the possibility that he’ll be called in front of committee more susceptible to leaks.

“From a prosecutors’ standpoint, it gets some of your case out in the open,” said Nick Akerman, a former prosecutor who worked on the Watergate investigation. There it can influence the testimony of other witnesses, Akerman told TPM.

How far lawmakers go to enforce a subpoena could also affect Mueller’s investigation, particularly if Cohen, once compelled, opts to invoke the Fifth Amendment to protect himself from self-incrimination.

Cotter brought up what he called the “Oliver North problem,” referring to the immunity Congress granted the former National Security Council aide to testify about the Iran-contra scandal in the 1980s. North’s later conviction in the federal investigation into the cover-up was ultimately overturned due to concerns that his congressional testimony — which he gave after receiving immunity — tainted the testimony of the witnesses who were used to prosecute him.

If the feds at some point want to prosecute Cohen for crimes beyond those to which he pleaded guilty, and he has received immunity for congressional testimony, prosecutors would have to prove they built their case without that testimony.

“Once you give [Cohen] immunity, you make it very hard to ever prosecute him ever again,” said Harry Sandick, a former federal prosecutor.

(Senate Intel Chairman Burr has said immunity is “off the table” in his investigation, but it’s unclear whether other committees would consider it.)

What makes the current situation even more dangerous for Mueller’s probe is Cohen could be answering the questions of at least some lawmakers who want to undermine the federal investigations involving Trump, rather than protect them.

“There will be on people on any committee Cohen goes before who, because of their political allegiances, could easily be expected to want to use his appearance as an opportunity to learn everything possible about the [Southern District of New York] investigation and the Mueller investigation,” Cotter said.

According to Cotter, there’s nothing to stop committee Republicans from seeking details from Cohen about what he was asked in front of a grand jury and how he answered, or even to recount his meetings with federal investigators.

While there are plenty of downsides, both general and in particular to the environment around Mueller’s probe, some former prosecutors still believed that the upsides of getting Cohen’s story on the record could outweigh the risks.

Rosenzweig argued that Mueller was not going to indict the President, so he wouldn’t need to present Cohen’s testimony in a trial against Trump.

“It might even serve [Mueller’s] interest a bit in getting Cohen’s testimony out in public so he doesn’t have to worry about what to include his private report to Bill Barr [Trump’s nominee for attorney general], that may or may not see the light of the day,” Rosenzweig said.

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