Dershowitz: Did Michael Cohen help or hurt Donald Trump? Yes and yes

The televised testimony of Michael Cohen before Congress both hurt and helped President Trump. It hurt him in the court of public opinion but may well have helped him in the court of law. The public hurt is obvious if you believe any or all of the testimony. From the characterizations of Trump emerges a picture of a businessman with clearly questionable character.

Cohen may have had an incentive to paint the unflattering portrait, but he also provided enough details to persuade open minded Americans, if any of those are left, that Trump has made statements and taken actions that do not put him in a positive light. That, of course, is for the public to judge themselves. That judgment will be reflected in the 2020 election. Thus far, character flaws emanating from Trump himself have not seemed to hurt him with his base, and the same might well be true two years from now.

On the legal front, Cohen inadvertently may have helped the president by showing the $35,000 check paid to Cohen from the personal account of Trump. If Trump paid for the silence of alleged mistress Stormy Daniels, he committed no crime. Candidates for office are entitled under the law to contribute unlimited amounts of their own money to their own campaign. Paying hush money to prevent a salacious story from being made public is entirely lawful. If the money had come from corporate contributions or other sources, issues could arise under the morass of campaign finance regulations. But if Trump had his lawyer advance the payments, and he reimbursed him from his own funds, that would not be criminal conduct.

{mosads}As to collusion with Russia, Cohen said he had no evidence, although he testified that Trump had learned from Roger Stone that WikiLeaks had given Stone advance warning of his intention to dump Hillary Clinton emails that put her in a bad light. According to Cohen, at that time Trump had welcomed the news. But that is also not a crime. As long as Trump did not advise WikiLeaks to commit the crime of hacking the emails, he was entitled to welcome their disclosure and use them to his advantage. That is sadly the nature of politics in this highly partisan era.

Getting WikiLeaks dirt may be immoral, however, there is a vast important difference between immorality and criminality. According to the testimony of Cohen, neither Trump nor anyone in his campaign crossed the line into criminality. There are some who say that the testimony of Cohen provides a roadmap for the House of Representatives to impeach Trump, but that is not the case here if impeachment requires “treason, bribery, or other high crimes and misdemeanors,” as the Constitution has specifically provided.

Radical Democrats like Maxine Waters argue that impeachment criteria is anything Congress decides. That is flatly wrong because every member of Congress takes an oath to uphold the Constitution. When a president is impeached, every senator must take an oath before the trial commences. Unless Congress decides the character flaws of Trump to which Cohen testified serve as grounds for impeachment, which under the Constitution they are not, the roadmap provided by Cohen leads to a legal dead end.

The hearings have revealed a dismal reality about American politics that Congress does not seem to be interested in seeking the singular truth. The Democrats have their truth, while the Republicans have theirs. They are diametrically opposed. Democrats in Congress wanted to believe that everything Cohen said was true, despite his long record of lying, so they believed him. Republicans in Congress wanted to disbelieve everything Cohen said, in order to protect the president, so they disbelieved him.

Ultimately, reasonable Americans will not place much trust in partisan investigations conducted by House Democrats or Senate Republicans. Nor are many open minded Americans going to accept the conclusion of the the special counsel report as gospel truth since, by its nature, any prosecutorial report is one sided. Those accused have no opportunity to respond, to cross examine witnesses, to provide exculpatory evidence, or to challenge the credibility of allegations against them in the process.

This is why I called for a nonpartisan expert commission, such as the one appointed to investigate 9/11. This commission would look into the entire 2016 election, including but not limited to Russian efforts to influence the outcome. It would not have a political agenda. It would be a more genuine search for truth with all slides being heard. It would be conducted largely in the open so that Americans could judge for themselves the credibility of the witnesses and the fairness of the process. But nobody seemed to have wanted such a nonpartisan objective investigation because both sides of the aisle are strongly committed to their political conclusions.

The special counsel report could be released in a matter of days or weeks. Supporters of Robert Mueller are sending a message of low expectations to not anticipate any smoking guns or dynamite revelations. The report will probably be a narrative of misdeeds based largely on circumstantial evidence as well as the testimony of indicted and convicted defendants.

This does not mean Trump has nothing to worry about. His main concerns should always have been the various United States attorneys offices that are also investigating his conduct before he ran, during the campaign, and in the lead up to the inauguration. Nobody knows how any of these investigations will turn out for the president, but it is most likely, to quote author T.S. Eliot, that they will end “not with a bang, but with a whimper.”

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.