How Courts Are Neutralizing Trump's Deceptions
The president deploys obfuscation as a political weapon, but both the Russia and Michael Cohen investigations show that facts really do matter in the courtroom.
On April 6, FBI agents raided the home, hotel room, and office of President Trump’s personal lawyer Michael Cohen. We now have a sense of the scope of their search: Investigators appear to have been seeking material relating to, among other things, the Access Hollywood tape, Cohen’s payments to two women who signed nondisclosure agreements regarding their alleged affairs with Trump, and communications between Cohen and two leaders of the National Enquirer, who may have played a role in silencing stories unfavorable to Trump. And with that, two of the major stories of the last year—the Russia investigation and the president’s history of sexual impropriety and harassment—began to converge.
The convergence is not entire. The agents raiding Cohen’s office and residences were acting not on behalf of Special Counsel Robert Mueller, but for federal prosecutors for the U.S. Attorney’s Office for the Southern District of New York, on the basis of a referral from Mueller’s office. Deputy Attorney General Rod Rosenstein, who oversees the Mueller investigation, may have signed off on that referral precisely to keep the special counsel from overstepping the bounds of his probe into Russian election interference and obstruction of justice. What’s more, a government court filing suggests that federal prosecutors have been conducting an investigation into Cohen for some time.
Trump’s strategy for responding to these developments was the same as always: deny any wrongdoing and insist that the fault lies instead with the investigators. (“Attorney-client privilege is dead!” he tweeted. “NO COLLUSION!!!”) It’s the same instinct that has reportedly led him to argue that the voice making vulgar comments on the Access Hollywood tape isn’t really his own. In fact, the tape is real enough that federal law enforcement is reportedly looking into it as part of the investigation into Cohen.
The president is a fabulist unmoored from the truth. And the confluence of the Russia investigation and Trump’s disturbing behavior toward women shows what happens when a serial liar collides at full speed with a legal system premised on the idea that words have meaning, and actions result in consequences. Trump’s obfuscation has been alarmingly effective in the realm of politics. It will likely prove less so in the courtroom, a space reserved for evaluating facts and weighing the consistency of arguments—though as president, Trump is unlikely to find himself on the wrong end of a criminal prosecution.
A liar acts to obscure the truth, the philosopher Harry Frankfurt argues, but a bullshitter acts without reference to truth at all. Over a year into the Trump administration, an enormous amount of ink has been spilled exploring how Trump’s “indifference to how things really are,” to quote Frankfurt, poses a danger to democracy.
Trump has used this flexibility with the truth as his main weapon in his defense against the Russia investigation. The efforts of the president and his supporters to counter Mueller are less about clarifying Trump’s side of things and more about eroding faith in the possibility of ever figuring out what took place during the 2016 election. Mueller, the only person potentially in a position to really say what happened, is relentlessly criticized as “conflicted” and out of control. The rest of the time, Trump selects from a roulette wheel of conspiracy theories involving the “deep state” and Hillary Clinton—distractions that however flimsy viewed one at a time, combine to create an atmosphere of confusion around the special counsel. The point of this fabulism is to ensure no conclusion in the Russia investigation, no matter how damning, can be trusted.
The president’s denial of the Access Hollywood tape’s authenticity is a prototypical example of his “indifference to how things really are.” He previously admitted it was real when he apologized for his “locker-room talk.” Trump surely knows the voice on the tape is his own; he just doesn’t care. In a similar vein, he has repeatedly claimed, both on the campaign trail and during his presidency, that more than 16 credible allegations of sexual harassment against him are “fake news.” According to Press Secretary Sarah Huckabee Sanders, the White House’s official position is that each and every one of Trump’s accusers is lying.
As with his falsehoods regarding the Russia investigation, Trump’s insistence that he never did or said any of the things of which he’s been accused is an effort to reshape the world to his specifications. It’s an assertion of power, a declaration that he and he alone—and not any of the women who have come forward, nor for that matter Robert Mueller—gets to decide what is and is not the truth.
The same dynamic is at work behind the agreements signed by Stormy Daniels and Karen McDougal—both, reportedly, of interest to the investigators looking into Cohen—which prevented the women from speaking publicly about their relationships with Trump. Daniels alleges that Cohen threatened and pressured her into signing a nondisclosure agreement; meanwhile, the publisher of the National Enquirer reportedly purchased McDougal’s story and then failed to publish it, raising the possibility that it was what’s commonly known as a “catch-and-kill” arrangement. Trump claims he had no knowledge of the agreement with Daniels, and has disclaimed any relationship with McDougal. But whatever the real extent of his involvement, Daniels’s and McDougal’s stories show how those in Trump’s orbit used the law as a tool to exert control over what’s known as fact, and what remains in the gray space of confusion and deniability.
For this reason, there’s a certain visceral satisfaction in watching Daniels turn that same tool against Trump—the confusion and deniability Trump relies on to protect himself could give Daniels an advantage in court. She may not succeed in convincing the courts to strike down her nondisclosure agreement, but her litigation has already shown the legal system’s ability to deflate Trump’s contradictions and half-truths. Particularly at issue is Cohen’s apparent decision to draw up the agreement between himself, Daniels, and Trump while withholding Trump’s signature—which might have provided the presidential candidate with plausible deniability at the time, but could now backfire if the judge holds the contract invalid as a result. (Cohen and Trump seem to have gotten themselves into similar trouble in the Southern District of New York: Prosecutors have argued that Cohen can’t withhold documents relating to Daniels on the grounds of an attorney-client privilege between himself and Trump, given Trump’s public insistence that he had no knowledge of the Daniels agreement.)
Daniels’s legal efforts to puncture Trump’s falsehoods are a scaled-down version of what’s transpired in the flood of court rulings against the administration’s more controversial policies. Again and again, judges have refused to let Trump get away with his usual trick of evading consequences by simply denying any involvement in what he did or said. Instead, they’ve written his tweets into legal opinions as evidence of animus against Muslims or transgender servicemembers. Law, after all, is a structure of meaning used to weigh facts and arguments and then impose consequences—the opposite of Trump’s glib insistence on the irrelevance of truth. What matters is not how loudly a person can boast but what evidence can be presented.
It’s for this reason that the Russia investigation looms so large. In his sternness and silence, Mueller has become not just a prosecutor or a special counsel but the embodiment of the justice system—the opposite of the dissembler in chief. The as-yet-hypothetical interview of Trump by the special counsel would either force the fabulist to tell the truth or put him at risk of being charged with lying to investigators. (Worry over the latter possibility is reportedly why Trump’s former personal lawyer John Dowd chose to leave the job.) Such a charge would be a long shot at best: There’s a strong constitutional case that a sitting president cannot be indicted. But through indictments of those close to the president or perhaps even an impeachment referral to Congress, Mueller’s prosecutors could extract consequences for some of the actions for which the president has so far skated by without political repercussions: asking Russian hackers to deliver Hillary Clinton’s emails “if you’re listening”; firing the FBI director; demanding the firing of the special counsel. That is, they have the ability to do what no one else has: hold the president to account.
How the Russia investigation will conclude is anyone’s guess. What seems more and more likely in the wake of the Cohen raid is that Trump’s inner circle may be held legally accountable for the president’s systematic mistreatment of women—not only through private litigation against the president but by government prosecution—and that Trump himself may finally pay a political cost. The Washington Post reports that investigators are looking into a broader effort by Cohen to quash “sources of negative publicity” against Trump in the run-up to the election—an effort that may also have involved National Enquirer chief David Pecker, who paid for McDougal’s story, and the Access Hollywood tape. A legal reckoning on Access Hollywood would be a dramatic rebuttal of the lesson of Trump’s election: that the candidate had somehow unmoored himself from consequence to the point where almost half of American voters could choose him as their president, only weeks after they heard him boast about assaulting women. Or as Trump himself said, “When you’re a star, they let you do it. You can do anything.”
For now, the president rages on. And while he remains in the White House, the clash of his falsehoods with the ongoing investigations brings home one of the many ironies of his presidency: that a man so opposed to the truth has shouldered the constitutional responsibility to “take Care that the Laws be faithfully executed.”
But prosecutors can only do so much. Mueller, known for playing by the rules, is unlikely to buck the internal Justice Department legal opinions that rule out indictment of a sitting president. And the special counsel may never share the whole of his findings with the public. More concerning, however, is the possibility that law comes up against the edifice of falsehoods and fails. That is, what if the special counsel unveils a catalogue of wrongdoing by the president and those around him, only to find that Trump has succeeded in undermining the idea of truth to the extent that a substantial proportion of Americans simply won’t believe whatever investigators have found?
Where will Americans be then?