The Cohen Hearing: Partisan Hate & Plausible Deniability

If it weren't for tape recordings proving his criminal conduct, President Nixon would not have resigned or been impeached

Different observers had different take home messages from the Michael Cohen hearing. Two things struck this observer.

Partisan hate: The first is the open, partisan hate and distrust. For practical purposes, the two sides hold completely incompatible visions of reality. In response to relentless republican accusations of Cohen being a liar, democrat points out all the lies, indictments, guilty pleas and convictions surrounding President Trump as a basis for concern. Jim Jordan, a far right Tea Party extremist, contemptuously retorts with a list of awful people and things he implies is due to bad, bad democrats. His list included, as always, Hillary, FBI employees fired for lying and other matters of legitimate concern, but mostly falling short of illegal activities.

Jordan and the republicans expressed essentially no concern about the unending sleaze and proven crimes surrounding Trump and his associates. Instead, their wrath is focused on bad people who have lost their jobs with no convictions, guilty pleas or even indictments so far.

In terms of compromise on any of this, prospects look dim at best. Maybe House democrats should agree to look at some of the most serious of the republican allegations as a show of good will and professional even-handedness. That won't change the attitudes of any congressional republicans about anything, but it just might win democrats some independent votes in 2020. There is no chance of republican willingness to compromise anything, so maybe the ball is in the democrats court on this point.

Plausible deniability: What was most striking to this observer was Cohen's testimony that he routinely spoke in code with Trump. There is a reason for this. By speaking in code, Trump can claim he never directly told Cohen to do anything sleazy or illegal. That might wind up being mostly true. Everything is alluded to and that creates ambiguity and thus some doubt for prosecutors, judges, and especially, jurors. In terms of federal criminal prosecutions, all that is needed for a criminal to stay out of jail is to create just enough doubt with just one juror on the jury. That is how easy it is for criminals to escape punishment for committing federal crimes.

The same is generally true in all states except Louisiana and Oregon, where conviction requires only 10 of 12 jurors. There, doubt needs to be created for at least three jurors for an accused criminal to escape punishment for committing state crimes.

If Trump is to be held accountable for his state or federal crimes, it will probably have to come from written evidence that cannot be impeached. In any court case, Trump's attorneys will do to witnesses who testify against Trump exactly what congressional republicans did to Michael Cohen. Trump's attacks will be just that vicious and just that unconcerned with truth.

B&B orig: 3/1/19