Did Trump Advise Michael Cohen to Lie to Congress?

Michael Cohen, the former Donald Trump lawyer and loyalist, has now revealed more of the president’s lies and misrepresentations, this time exposing falsehoods about the history of the president’s business dealings with Russia. The lies were detailed in court documents made public on Thursday, as Cohen pleaded guilty to lying to Congress.

Cohen previously admitted to the lies told about arrangements he had undertaken at the president’s direction to bury potential press stories about alleged extramarital relationships. The newly disclosed lies are similar in seriousness to those falsely denying payments to conceal alleged affairs. It is their content that distinguishes these falsehoods from the disturbing but less consequential series of tall tales, embellishments, and fabrications for which the president, in tweets and public statements, has become notorious. In the case of the election-eve payments made to conceal his affairs, the president was engaged with others in the commission and cover-up of violations of federal campaign-finance law. The most recent disclosure involves the obstruction of a congressional investigation, and the question now presented is whether, directly or indirectly, the president had any part in Cohen’s choice to lie to Congress.

The sentencing memo submitted by Cohen’s lawyers attributes to misplaced loyalty his decision to lie to Congress about Trump’s business negotiations over a Moscow hotel project. Cohen does not say that the president instructed him to lie. He was aware, his lawyers write, of the president’s public statements—that he had no such dealings with Russia—and he chose a line of testimony that would not contradict them. He was especially concerned to refute any suggestion that the negotiations continued into the active phase of the presidential campaign, well past the date on which the president had locked up the nomination.

Read: Three remarkable things about Michael Cohen’s plea

But Cohen also indicates that as he prepared his congressional testimony, he was in “close and regular contact” with the White House staff and the president’s lawyers. This passage would suggest communications about his testimony, which—it is reasonably assumed—would have included discussion of its content. And it would be hard, indeed well-nigh impossible, to believe that the president’s team did not share with Trump what it learned. In fact, Trump’s lawyers had an obligation to advise him of what they knew.

At the time, Cohen was not only speaking on an issue of intense concern to the president: Cohen’s lawyers acknowledge that at the time he was asked to testify before the Senate and House Intelligence Committees, he “was serving as personal attorney to the President.” Did Cohen enter into these discussions in the belief that he had an obligation to share information about his testimony—and did he then come away with the understanding on both sides that he would give testimony that all knew to be untrue?

Certainly, whatever transpired in these discussions, they did not deter Cohen from lying. As Trump’s loyal lawyer and friend, he would presumably have followed instruction or advice to testify truthfully. It would have been by far the better course for him. To have told the truth about the business negotiations would not have constituted, in and of itself, the admission of a crime, but a lie opened up the legal jeopardy he could have avoided. Still he lied, and it was a lie told to Congress in the course of an investigation.

Read: What Michael Cohen’s guilty plea means for Trump

The full facts of the exchanges between Cohen, and Trump’s staff and lawyers—and the further question of what the president knew and when—will clarify whether these lies would subject individuals other than Cohen, including the president, to legal liability. The resolution of the legal question does not settle the matter for the president if Trump was aware that his personal lawyer and close associate was planning to lie to Congress and he either acquiesced, perhaps signaling through agents and lawyers his approval of this course of action, or took no action to discourage it.

This is not the first time a question has arisen about the president’s direction, encouragement, or tolerance of lying by another to undermine a lawful investigation. When former National-Security Adviser Michael Flynn is sentenced, the proceedings may make public more information about whether the president knew about his lies to the FBI concerning his discussions of sanctions with the Russian ambassador, Sergey Kislyak. By January 28, 2017, Deputy Attorney General Sally Yates advised the White House counsel that there was a problem with Flynn’s FBI interview. Sean Spicer later told the press that the president was “immediately informed of the situation.”  

Yet for two weeks, Flynn stood by his false statement about the content of the conversation with Kislyak. There is no known evidence that during this period, Flynn was ever advised to revisit the issue with the FBI and, if necessary, correct the record. When the president later fired Flynn, he claimed that the dismissal was prompted by the lie as Flynn told it to Vice President Mike Pence, not to the FBI.

Read: Michael Cohen takes Mueller inside the Trump administration.

These facts invite a reasonable question: Why did the president distance himself in this way from knowledge of the lie told to the FBI? One explanation is that he knew about it in advance, or if only after the interview, nonetheless ordered no corrective action.

If Trump did direct Flynn to lie to the FBI, or abide his doing so, the reasons could well mirror those that may have motivated any encouragement to Cohen to give false congressional testimony. While in both cases the individuals in question could have been truthful without running serious personal legal risk, the political—and possible legal—cost to a president highly sensitive to suggestions of “collusion” with Russia would have been very high. Flynn and Cohen did not help themselves by lying. It seems that only Trump would have seen some advantage, some “help” to himself, in these lies.

In either case, or both, a president’s involvement in these lies, each told to undermine a lawful inquiry, would constitute a clear violation of his obligation to take care that the laws be faithfully executed and to desist from actions that, in the words of the House Judiciary Committee staff’s 1974 report on the standards for impeachment, are “grossly incompatible with the proper function and purpose of the office.” More specifically, the impeachment articles approved by the committee cite Richard Nixon’s actions in “condoning” and “acquiescing in,” not only specifically “approving” and “counseling”:

The giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings.

Cohen’s plea deal raises the question of whether the House Judiciary Committee will one day say the same of Trump.