The SCO Statement and Why Cohen Should Not Testify Feb. 7

Marcy wrote a great post this morning titled “Peter Carr Speaks“. I agree with almost all of it, if not all of it, but feel compelled to add a couple of things.

As to what the motivation of Carr and Mueller was, it is, at this date, unclear, despite the high handed and dismissive sudden reactive reportage of Devlin Barrett, Zapotsky and Demerjian at WaPo and Ken Dilanian of NBC/MSNBC. They have shown even less sources and credibility than Buzzfeed that they now conveniently and eagerly dismiss. Maybe the Mueller statement is a tad more nuanced and unknown than that.

As to what the target of the Mueller/Carr statement was, when Marcy says:

But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.

Yes, this looks almost certain from where I stand. Wasn’t the only aim of Carr’s arrow on behalf of Mueller, but was a rather large one.

Secondly, and since many media outlets and commenters are clacking about how the proof of Trump directly telling Cohen to lie is the end all and be all as to necessity for discussion, that is just wrong.

The record before the Buzzfeed article already established, through signed and accepted court filings, that Cohen indeed lied to Congress with the express intent of supporting the lies Trump was fostering.

That is not in dispute at this point. As to whether Trump personally ordered Cohen to do so, face to face, (and there is still a decent shot of that being true, but we do not know), that is not the end of the discussion legally.

First off, if those around Trump, (think lawyers and family, if not Trump himself), discussed and encouraged Cohen to lie to Congress, that is a huge problem for Trump. Let me remind people of one of the most basic definitional provisions in the criminal code, 18 USC §2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

So,  all of the nonsense by Rudy Guliliani is simply nonsense. That is without even considering conspiracy law and implications thereof.

So, sure, the SCO hit on Buzzfeed hurt the narrative in the press. Did it really hurt the narrative legally? No, not so much.

Lastly, I would like to address the upcoming House Oversight Committee hearing Cohen is scheduled for on February 7. He was voluntarily appearing after restrictions Cummings and the Committee agreed to, purportedly, with Mueller. The ground has changed. Frankly,  I think the hearing this quickly was ill considered and premature grandstanding to start with, but now strikes me as nuts given the changed circumstances after the Buzzfeed piece, SCO brushback and Trump’s direct threats to Cohen’s extended family.

Given the aggressive nature of Trump’s followers, there is a credible threat to Cohen and his family. But, more than that, there is a threat to his credibility and usability as a witness in the future. The ranking member on the House Oversight Committee is the odious Jim Jordan. His other GOP minority members will undoubtedly fall in line to attack Cohen, especially after the vague pushback comment of Carr/Mueller last night. It is set up now as a clown show.

The hearing should either be affirmatively postponed by Cummings or withdrawn from by Cohen personally. There is nowhere near enough good that can come from Cohen’s appearance, and a lot to lose for both him and Mueller given the shitshow that the GOP members will bring to the affair. Cancel that February 7 hearing and testimony. Just do not do it.

[For the record, I originally lodged this as a comment on Marcy’s post, but for unrelated reasons, thought the points about criminal liability and conspiracy needed to be included in a separate post, and did not wish to step on hers at the time.]

42 replies
  1. Wajim says:

    ” . . . less sources . . .” Ugh. My twin-horned grammarian soul arises: in general, if you can count ’em, it’s “fewer.”  As in, “this defendant had fewer charges than that defendant.”  You would indeed say “Defendant X had lesser charges than defendant Y for the same crimes, but Y had fewer.” Man, I feel better now.  Thanks. (Love your work, bmaz, nothing personal.)

    • gedouttahear says:

      It was a typo, not a grammatical error. It obviously was meant to be “less sauce,” which is a way of saying a journalist doesn’t have balls to speak of.

    • AitchD says:

      Right, that’s one way to look at it. ‘Less’ fits as well for me as my image in his phrase is cognate with what in fact would be ‘less stuff’. Now, Bud Lite has less calories and is fewer filling, expecially when you buy the full half-quart size.

  2. Hops says:

    Let’s see. FBI agents give BuzzFeed the ultimate juicy scoop. Twitter, MSM, and blogosphere go nuts about impeachment. Team Mueller issues statement deprecating BuzzFeed. Trump now loves Mueller. Brilliant….?

    • Richieboy says:

      “Up until now it’s all been a witch-hunt, but we applaud Mueller for telling the truth, this one time. We now return you to the non-stop witch-hunt.”

  3. TooLoose LeTruck says:

    Given the aggressive nature of Trump’s followers, there is a credible threat to Cohen and his family.

    Well… I, for one, am amazed that no one close to the center of this mess has turned up dead yet… not that I want to see it happen… just amazed that it hasn’t happened…

      • TooLoose LeTruck says:

        I think the key phrase here might be “so far”…

        Especially given the propensity for individuals who apparently have run afoul of Putin to somehow turn up dead…

        I did see that piece about the model taken into custody…

        And honestly, could there possibly be some we don’t know anything about?

      • Rayne says:

        No fatalities this side of the pond . . so far.

        You really need to take a closer look at the dead Russians here in the U.S. — Sergei Krivov, Vitaly Churkin, Mikhail Lesin — let alone the ones overseas who have all died since the 2016 election.

    • harpie says:

      Sasha Samberg-Champion: 

      Replying to @qjurecic  // I find most important part to be explicit walking back of same reporters’ suggestion (perhaps accidental) in yesterday’s reporting that Main Justice people had inside knowledge of what Special Counsel’s Office was up to and that SCO intended categorial denial of the story. 

      Daniel Dale:

      5:04 PM – 19 Jan 2019 WaPo on what happened: BuzzFeed’s initial request for comment, over which Mueller’s team didn’t object, didn’t say they were planning to report Cohen *told Mueller* Trump directed him to lie, just that they were going to report Trump directed Cohen to lie.

    • Trip says:

      Willis, I was just about to post this. For people defending against leaks, that piece is pretty damn chatty.

      Not from Mueller’s office, but this is included in the article:

      While neither Cohen nor his representatives had ever said explicitly that Trump directed Cohen to lie to Congress, Guy Petrillo, Cohen’s attorney, wrote in a memo in advance of his sentencing, “We address the campaign finance and false statements allegations together because both arose from Michael’s fierce loyalty to Client-1. In each case, the conduct was intended to benefit Client-1, in accordance with Client-1’s directives.
      Client-1 refers to Trump. Petrillo declined to comment Saturday.

      Wouldn’t Petrillo be considered a representative? He seems to be lumping two cases into one in that memo.

      It was not, however, the language of the guilty plea document (to recap):

      “I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1,” Cohen said at his plea hearing late last year, using the term “Individual 1” to refer to Trump.

      Shit is weird.

      • Trip says:

        Oh yeah, and as Marcy noted, THE DOJ called to ask if they were going to release a statement.

        In the advanced stages of those talks, the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared, the people said.

        Aside: As Mimi Rocah speculated, they were in lock down all day, essentially, to determine if the SCO actually had leakers.

        • harpie says:

          Ryan Goodman‘s reaction:

          5:03 PM – 19 Jan 2019 A curious part of the [WaPo] storyline: // “the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared” / Special Counsel regulation 28 CFR 600.7: // “The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.”

  4. chuck says:

    When I first read Buzzfeed’s characterization of the sources I thought Secret Service would fit just as easily as FBI. Then with some purposeful vagueness made it sound like they were sourcing the SCO. If that’s the case, the push back from the SCO helps to even further obscure Buzzfeed’s sources.

  5. punaise says:

    It’s probably too early in a serious thread to go off topic, but with all the keen legal minds around these parts it would be a shame not to try to pick some brains. A few questions pertaining to a first-year law student at at a noted institution here in Berkeley.

    1. For someone on a path towards a career in environmental issues related to climate change, is there any conventional wisdom about targeting first year summer internships? In this case, government (environmental dept.) vs. non-profit.

    2. For someone with this career path (i.e. not looking to clerk, work for a white-shoe corporate firm, and/or get into academia) does working on the local Law Review make sense (if successful in the Write-On competition)? It would be a big time commitment on top of a very taxing course workload.

    3. Is it typical to get offered a T.A. position for next year by a prof whose only had that student for one semester?

    …asking for a friend! (OK, daughter punaisette)

    • posaune says:

      Hi Punaise,  so glad you are here these days!

      IANAL, and so I don’t have specific advice wrt to applying for 1L summer law internships.   But, I do work in land use & development for a govt agency that has an environmental division (with legal dept); I think there is value in exposure to this type of setting to gain an understanding of how the fed, state and local regulations fit together as to codes, ordinances, standards of practice and enforcement. There are a lot of pieces to it:  (a) legislative and lobbying work, (b) master planning and state/fed reporting; (b) regulatory review of conformance.  Many pieces must be integrated into a jurisdiction’s plan to address climate change: forest preservation, re-forestation, impervious surface reductions, storm water control, soil stabilization & erosion control, density limitations or incentives, building codes, building materials specifications (incl LEEDS), food sourcing, water sourcing, transportation, alternative energy subsidies, etc.  Given that efforts will be locally (or state) driven, in many instances, a view of those efforts at the local level may provide a good perspective. Ultimately, to become legally effective, climate change planning must be fully integrated with a jurisdiction’s General Plan that is approved and adopted by the local or state legislature with oversight.

  6. Trip says:

    P J Evans says:
    January 19, 2019 at 8:53 pm

    My assumption was that the people in charge of the offices that would have dealt with it had their jobs threatened, or were “asked” to leave, if they didn’t allow the lease to go through.

    Let them testify to that under oath.

  7. Trip says:

    harpie says:
    January 19, 2019 at 9:01 pm

    Ryan Goodman‘s reaction:

    5:03 PM – 19 Jan 2019 A curious part of the [WaPo] storyline: // “the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared” / Special Counsel regulation 28 CFR 600.7: // “The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.”

    I’ll leave this here:

    bmaz @bmaz

    If the WaPo doesn’t have Carr and/or another SCO member on the record, this article in the Post is every bit as shitty, and unsourced, if not worse, as the @Buzzfeed one the Post has spent the better part of two days blithely shitting on. This is lame.

    John Panzer‏ @jpanzer 3m3 minutes ago
    Replying to @bmaz @BuzzFeed

    And what was Carr’s response when asked for comment on the statements by the two anonymous sources? I don’t see that in the story. If their characterization is accurate, why would Carr not go on the record?

    It makes your head spin.

  8. J Barker says:

    From the recent Washington Post article:
    “People familiar with the matter said after BuzzFeed published its story… the special counsel’s office reviewed evidence to determine if there were any documents or witness interviews like those described, reaching out to those they thought might have a stake in the case. They found none, these people said. That, the people said, is in part why it took Mueller’s office nearly a day to dispute the story publicly.”

    This strikes me as exceedingly odd.
    Presumably the Mueller prosecutors would have known within approximately .000001 seconds whether or not they were already in possession of any documents or witness testimony nailing Trump on directing Cohen to lie to Congress. There would be no need whatsoever to double-check, just in case they missed some email in which Trump *directs Cohen to lie*, right?
    Or do you think they would go through this process anyway, perhaps only as a formality, so that they can truthfully say later on: “yeah, we triple checked. It’s not there.”

  9. Erica says:

    The Republicans are going to go after his father in law. Does anybody think he will plead the 5th? Can he plead the 5th on some questions?

  10. Rusharuse says:

    Meanwhile Trump wins AGAIN!
    Mueller better start shit-dumping on Trump pretty soon or the game will be lost.

  11. Erica says:

    Is it possible it was Secret Service officers? Can they actually report unlawful conduct? Maybe they overheard Trump telling Cohen to lie. They would have a dam good motive after the first lady took off to Florida and the agents arent getting paid!

  12. Eureka says:

    Thank you again bmaz for sharing your expertise here and in earlier comments.  I always appreciate your clarity and directness.

    IIRC, you were not a fan of Cohen giving HOC testimony (when scheduled) even before all of this BF news and related events.  I think they need to pull it but maybe on a delay- too close to this news would read (or sell) like Cohen’s not a legit witness.  Unless of course Cohen or someone else cites the threats to his family as the reason.

  13. DMM says:

    At least Dilanian didn’t purport to have independently “confirmed” the original error this time. Progress!

  14. Wotadog says:

    Thank you Bmaz for your good advice re 7 Feb. I wish it would go viral. A question: wouldn’t it be better for Maxine Waters Financial Services Committee to be the first cab (committee) off the rank? I understand Waters would have the power to subpoena Trump’s personal tax returns and bring in bank executives for investigations…. tax returns are something most people understand…in terms of optics. Or is that even more dangerous to Mueller’s investigation?

  15. Desider says:

    I’m not familiar with Jim Jordan, so that may poison any possible good outcomes, and IANAL, but…
    The legal cases Mueller is pursuing are different than the soon-to-come impeachment process, and Mueller might believe it important to allow that to begin seriously in parallel (e.g. in light of the government shutdown & other damage Trump is doing, or for other reasons).
    While probably all of us would love to see Trump & cronies in jail, by far the most important issue is removing him from office before he damages the country worse – perhaps even if Cohen’s ultimate use as a regular trial witness is damaged (and I’d suspect there’s enough corroborating evidence on most of his targets – including his iPod collection – that his presence is growing less urgent).
    Anyway, just my thoughts.

    • name of the rain says:

      The iPod collection is Manafort, Cohen apparently made lots of audio recordings but I don’t know that we know what devices they’re stored on:

      • Desider says:

        Oops, my bad, conflated Cohen’s “recording everything” w Manafort’s stash of iPods & other devices in storage.

    • Rayne says:

      I don’t anybody here believes there shouldn’t be Congressional investigations with public hearings. However, Congressional hearings may not all be public depending on the witnesses/subjects and the materials they address — like classified materials — and the Congressional hearings closed or open to public shouldn’t interfere with either the Special Counsel’s Office investigation or other DOJ/FBI investigations.

      Welcome to emptywheel, by the way.

  16. timbo says:


    Typically, prior to public testimony to Congress in situations like this, there will be depositions taken before hand in private by lawyer-investigators of the committe. That is, Committee members often want to know a bit of what they’re going to hear and to follow up with statements >prior< to public hearings under oath. Note that this cuts down on the surprise factor for committee members and committee counsel, as well as witnesses and witness counsel. It also lets Congress check with DOJ in advance if there is any potential conflicts with ongoing federal investigations elsewhere. In the end though, Congress makes all the calls (if they're asserting Congressional prerogative).

    (Not sure why I can't respond to Candypants in a subpost but that's how it is at the moment apparently.)

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