On May 6, Michael Cohen will surrender himself to a federal penitentiary after pleading guilty to lying to Congress. But before then, he is coming to Congress to testify before three congressional committees — including a public hearing before the House Oversight Committee on Wednesday — and the hope is that he’ll use this do-over opportunity to tell the truth.
Lying to Congress is never a good idea. But until recently, only a handful of people have ever faced legal consequences from lying to Congress. That short list includes baseball player Roger Clemens for lying about using performance-enhancing drugs, the Reagan administration National Security Adviser John Poindexter for lying about the Iran-Contra affair, and Nixon Chief of Staff H.R. Haldeman, who served time for lying about the Watergate cover-up.
More recently, Cohen received three years in prison for a series of federal crimes, including making false statements to the House and Senate Intelligence Committees in August 2017 about the timeline of Trump Organization efforts to build a Trump Tower in Moscow. Under federal law (18 U.S.C. Section 1001), it is a crime to “knowingly and willfully” conceal something from or make a false statement to Congress — punishable with up to five years in prison. Cohen’s conviction for lying to Congress may prove to be not an exception to that rule of rarely prosecuting Section 1001, but may suggest a new rule altogether.
The Section 1001 charge may be especially attractive to prosecutors in a matter like this, where the underlying substance is heavy with counterintelligence and national security information. It gives prosecutors an option of a much cleaner and simpler case in which they can present clear evidence without trying to build a case — with its public trial, constitutional disclosure obligations and publicly presented evidence — in a complex area with national security considerations.
Cohen is not the only Trump confidant who may have misled or concealed evidence from Congress in relation to the Trump-Russia probe. His conviction under Section 1001 may signal federal prosecutors’ interest in using the crime of lying to Congress to bring those involved with the Russia matter to justice — or in the very least as a deterrent to discourage lying to investigators and encourage witnesses to come clean to Special Counsel Robert Mueller.
If Cohen’s conviction signals a new way of doing business under Section 1001, others who might also be spooked include:
Donald Trump Jr.: In his testimony before the Senate Judiciary Committee, Trump Jr. told Senate investigators that he was only “peripherally aware” of a Trump Moscow deal in the 2015-2016 timeframe and that the “extent of the deal” was a letter of intent signed by the Trump Organization. He also claimed to have told his father nothing about the Russian lawyer he met with in Trump campaign headquarters on June 9, 2016. If he is found to have covered up sharing details of this meeting with his father or the campaign’s relationship to the Russian lawyer, or if Mueller or congressional investigators discover that he was more involved in the Moscow deal than he suggested, under federal prosecutors’ renewed interest in Section 1001, Trump Jr. may face similar trouble.
Former Attorney General Jeff Sessions: Though it would be highly unlikely to prosecute a former attorney general, Sessions has been accused of omitting to tell Congress about his contacts with Russians during the campaign, unequivocally stating, “I did not have communications with the Russians,” but later admitting he had at least three meetings with them during the campaign. In July 2017, a lawsuit by American Oversight forced the release of a portion of Sessions’ SF-86 form, revealing that he had also omitted his Russian contacts when applying for a security clearance.
Former Deputy National Security Adviser K.T. McFarland: McFarland told the Senate Foreign Relations Committee that she was not aware of any contacts between then–National Security Adviser Michael Flynn and Russian Ambassador Sergey Kislyak. An email chain has since revealed she was aware of the contacts between Flynn and Kislyak regarding sanctions imposed on Russia by the Obama administration, and Flynn later admitted in federal court that he had briefed McFarland on the conversation. (Flynn has since pleaded guilty to lying to the FBI about the contacts.)
Trump Campaign Adviser Carter Page: Page’s testimony before the House Intelligence Committee was riddled with holes. Page testified that he never spoke to Russian government officials on behalf of the Trump campaign, and then later admitted in the same testimony that he may have met briefly with the Russian deputy prime minister. Page also concealed documents from the committee, refusing to turn them over because they would “not match up” and would show a “lack of overlap.” If Page’s interactions with Russia during the campaign are later found to be more extensive than he testified to, or if he is found to have concealed material documents from Congress, he could be in trouble.
Trump Campaign Adviser Michael Caputo: Caputo has admitted that he did not disclose to the House Intelligence Committee communications he and Roger Stone had during the campaign with a Russian offering damaging information on Hillary Clinton, though he later sent a letter to the committee amending his testimony. It remains to be seen what else Caputo may have neglected to disclose.
Jared Kushner: Trump’s son-in-law testified to the Senate and House Intelligence Committees in closed sessions. However, the House Intelligence Committee recently voted to release all witness testimony, including Kushner’s, to Mueller. Kushner has already admitted to making material omissions on his security clearance forms, which may cause congressional investigators and prosecutors to take a close look at his statements to Congress.
Trump Bodyguard Keith Schiller: Schiller has long been one of Trump’s closest confidants and likely has some of the best information about what the president knew, and when. Schiller testified in closed sessions before the House Intelligence Committee, so it is not known what the testified to, but his testimony will also be handed over to Mueller, making it very important for Schiller that his testimony was accurate and consistent.
A number of witnesses in the Russia investigation have already shown their willingness to say one thing to Congress, and then another thing when confronted with additional evidence. Federal prosecutors may take this opportunity to finally give teeth to Section 1001 and make it unequivocally clear that lying to Congress comes with consequences — as it has for Cohen. As Senate Intelligence Chair Richard Burr said when Cohen pleaded guilty, “You cannot lie to Congress without consequences.” We will see in the next few months if that holds true.
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