This Charge Is Different
An explosive report that Trump directed Michael Cohen to lie to Congress provides a straightforwardly impeachable offense.
Updated at 11:35 p.m. ET
It’s not just the collusion. It’s the conspiracy.
On Thursday evening, BuzzFeed News dropped a bombshell, reporting that President Donald Trump told Michael Cohen, his former personal attorney, to lie to Congress about the Trump Organization’s pursuit of a real-estate project in Moscow during the 2016 election, a period in which the Russian government was seeking to aid Trump’s presidential campaign.
“Assuming all the evidence adds up to the conclusion that the president asked Cohen to lie about the Russia deal, it’s evidence of conspiracy, of obstruction of justice, of suborning perjury,” said John Q. Barrett, a law professor at St. John’s and a former associate counsel in the Iran-Contra investigation. “It’s impeachment material.”
According to BuzzFeed News, Special Counsel Robert Mueller assembled evidence that Trump directed Cohen to lie, including “interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.” That would represent a significant escalation in the legal and political risks to the president.
“If true, this directly implicates the president in a conspiracy to obstruct justice or to make false statements to Congress, or as an aider and abettor to Cohen committing those crimes,” said Randall Eliason, a former U.S. attorney and a law professor at George Washington University. “Whether a sitting president can be indicted is a separate question, but there would be no wiggle room in terms of whether he was guilty of the offenses. The key, of course, is whether you can prove it and whether there is additional evidence beyond just Cohen’s word—and from the article, it sounds like there is.”
While evidence that the Trump campaign sought to assist the Russian effort to interfere in the 2016 election, and that the president then sought to hamper the federal investigation into that effort, has been in public view for some time, evidence that the president directed Cohen to lie to Congress would be something different entirely, a claim that the president conspired to commit a crime in pursuit of personal financial gain. Republicans have tried their best to set expectations so that only the clearest and most shocking of acts would qualify as criminal—and Trump’s reported actions would not only meet but exceed them.
The report, if verified, provides a potentially simple narrative for a story that has often seemed complicated: Trump sought to profit from a real-estate deal in Moscow, and so defended Russia against accusations of interference, and then directed his personal attorney to commit perjury to cover up what he had done.
Obstruction of justice and perjury are crimes that turn on state of mind, but the details in the BuzzFeed News report would leave Trump with few defenses. “If President Trump instructed Michael Cohen to testify to Congress, giving an account of the Russia project that Trump knew to be false, that’s obstruction of justice,” said Bruce Green, a law professor at Fordham and a former associate counsel in the Iran-Contra investigation. “It’s hard to imagine that Trump would have had an innocent ‘state of mind.’ The only viable legal defense would be ‘It didn’t happen.’”
Late Friday evening however, the office of the special counsel took the unusual step of issuing a vague but firm denial of BuzzFeed News’ reporting. Peter Carr, a spokesperson for the special counsel’s office, said that “BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.”
During the 2016 election, U.S. intelligence agencies have said, the Russian government ordered a campaign of disinformation and hacking designed to hamper the candidacy of Trump’s Democratic rival, Hillary Clinton, and to help put Trump in the White House. The theft and release of emails from the Democratic National Committee and from the Clinton adviser John Podesta were major factors in the election—damaging Clinton’s reputation and altering the news cycle during periods in which the Trump campaign was dealing with negative coverage, and ultimately affecting what turned out to be a startlingly close election in which Trump failed to win the popular vote. Throughout the election, and even his presidency, Trump has used his influence to dismiss the conclusion of American intelligence agencies that the Russian government was responsible for the hacking.
Shortly after becoming president, Trump pressured then–FBI Director James Comey to end an investigation into Trump’s former campaign surrogate and national-security adviser, Michael Flynn, who had lied to federal investigators about his contacts with Russian officials. Comey refused and was later fired by Trump. Although the Trump administration initially said Comey was fired for improperly disclosing information about the federal investigation into Clinton’s handling of classified emails, he later told Russian officials in the Oval Office and an NBC reporter in a televised interview that he had done so because of the Russia investigation. Trump publicly fumed that his choice for attorney general, Jeff Sessions, had recused himself from that investigation after misleading Congress about his contacts with the Russian ambassador, rather than protecting Trump.
Republicans deployed a new line of argument—that Trump’s behavior was simply so careless and blatant that he couldn’t have intended to commit a crime. They dismissed the growing number of former Trump aides pleading guilty to federal crimes unrelated to the president’s conduct with Russia. Republicans scoffed at the president’s felony violation of campaign-finance laws as small potatoes. Trump stalwarts also argued that because firing an FBI director is within the president’s authority, it could not be considered obstruction of justice, even if Trump was trying to stop the investigation. Indeed, that was the core argument of a memo written by William Barr, Trump’s choice to replace Sessions as attorney general.
But Trump’s reported conduct would exceed even the high standards for presidential criminality set by Barr in his memo. Barr wrote, “If a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.” During his confirmation hearing earlier this week, Republican and Democratic senators pressed Barr to clarify his argument.
When the Minnesota Democrat Amy Klobuchar asked, “A president persuading a person to commit perjury would be obstruction. Is that right?” Barr answered, “Yes.” When the South Carolina Republican Lindsey Graham asked Barr, “If there was some reason to believe that the president tried to coach somebody not to testify or to testify falsely, that could be obstruction of justice?” Barr again replied in the affirmative. By the sky-high standards set by his own handpicked choice for attorney general, Trump’s reported conduct would be a crime.
“If it is true, and can be proven, that Trump directed Cohen to lie to Congress, then he has no wiggle room,” said Alex Whiting, a law professor at Harvard and a former federal prosecutor. “There has been some debate about whether acts by the president to curtail a criminal investigation can be obstruction, since he is the head of the executive [branch] … but instructing or encouraging another person to lie under oath to Congress falls outside of that debate. There is no question that it was a crime for Cohen to lie to Congress, and Trump’s role in soliciting or directing that lie makes him criminally liable as well.”
Indeed, assuming the BuzzFeed News story holds up, the only defense of Trump’s conduct is an imperial, Nixonian conception of the presidency—that nothing the president could do is illegal.
“Being president does not mean you get to rob a bank. Being a president doesn’t mean you get to do drug deals,” said Barrett. “Conspiring to provide false evidence to Congress has nothing to do with the exercise of a constitutional power.”
Justice Department regulations prevent a sitting president from being indicted. But the Constitution provides a remedy for presidents likely guilty of criminal acts: impeachment. From Richard Nixon to Bill Clinton, both parties have considered obstruction of justice to be an impeachable offense.
“Congress should hold the upcoming hearings with Cohen and otherwise try to gather evidence supporting these allegations. If they can be proven, I think Congress has to seriously consider beginning impeachment proceedings,” said Eliason. “There’s no question that obstructing justice by instructing a subordinate to lie to Congress in order to help yourself get elected is an impeachable offense.”
There should be no illusions about the difficulty of impeaching this president if Congress takes that path. He has built a cult of personality among his supporters, who dwell in an alternative reality where the president’s critics are the ones truly guilty of the offenses of which Trump has been accused. He retains the support of conservative media outlets, who provide a steady drumbeat of fawning praise and conspiratorial disinformation. And Republican legislators who once excoriated the president for his politics, his racism, and his personal conduct have bound their fate to his.
But there should also be no illusions about what the weight of evidence against Trump says: The president is a crook.