For much of Friday, it looked like Donald Trump was in a major legal pickle–perhaps one of his biggest pickles yet. BuzzFeed roiled the political world with a report suggesting that Trump ordered his longtime personal lawyer and fixer, Michael Cohen, to deliberately lie to Congress about the extent of negotiations about a Moscow Trump Tower. There is no question about it–if this was in fact true, this would have been the definition of obstruction of justice. It was equally beyond dispute that if Trump had done this, it would have been an impeachable offense.
But on Friday night, the office of special counsel Robert Mueller took the unusual step of issuing a public statement saying that BuzzFeed’s story was “not accurate.” The Washington Post subsequently reported that the special counsel’s office would have balked at greenlighting the story had it known about BuzzFeed’s specific claims. The BuzzFeed story claimed that Cohen told Mueller Trump ordered him to lie, and that Mueller learned this by culling Trump Organization emails and texts, as well as by interviewing Trump Organization staffers.
Predictably, Trumpland danced a jig at what it saw as another case of Trump Derangement Syndrome being exposed–led by Trump himself.
Trump and friends later spent the weekend pummeling BuzzFeed on Twitter.
But if Ryan Goodman of Just Security, the national security law blog of New York University’s Reiss Center on Law and Security, is to be believed, the deplorables may have spiked the football too soon. Goodman noted that there is ample evidence in the public record indicating that even if Trump didn’t order Cohen to lie, he encouraged Cohen to lie, or at the very least knew Cohen was going to lie. Either one of those scenarios could potentially put Trump in a legal pickle even if BuzzFeed missed the mark.
Goodman recalled that when Cohen was sentenced for lying to Congress, his lawyers stated in their sentencing memo that Cohen remained in “close and regular contact” with Trump’s–er, “Individual-1’s”–legal team. Cohen’s lawyers also said that Cohen’s perjury sprung from an effort to conform to Trump’s “political messaging” that there was “NO COLLUSION” with Russia, and “in accordance with (Trump’s) directives.”
Mueller’s memo stated that Cohen provided “relevant and useful information” about his contacts in the West Wing, and detailed the events leading up to preparing his written testimony. Mueller stated that Cohen took responsibility for the false and perjurous remarks in his testimony.
Additionally, one of Cohen’s lawyers, Lanny Davis, told Bloomberg News in December that when Cohen testified before Congress, Trump knew Cohen was going to lie. Listen here.
With this in mind, Goodman spoke with a number of former federal prosecutors and Justice Department staffers who served in Democratic and Republican administrations. Their responses should make anyone close to Trump nervous.
Harry Litman, a former deputy assistant attorney general and former U. S. Attorney for the Western District of Pennsylvania under Bill Clinton, believes that if Trump ordered Cohen to lie, “he would have criminal liability for all of Cohen’s acts, as well as other crimes.” If Trump merely encouraged Cohen to lie or knew Cohen was going to lie, Litman believes Trump could face charges of aiding and abetting, or “misprison of felony”–that is, knowing someone is going to commit a felony and not reporting it.
CNN legal analyst and former Obama-era federal prosecutor Renato Marotti believes that if Trump “directed or corruptly persuaded” Cohen to lie, proof of “mere ‘encouragement’ is enough” to put Trump in a pickle. He cautioned, though, that it wouldn’t be a slam dunk to prove this unless Trump “explicitly instructed” Cohen to lie–though he’s heard of cases where criminals suggested or understood that an associate was to lie to prosecutors or police.
Barbara McQuade, the former U. S. Attorney for the Eastern District of Michigan under Obama, is of a similar mind as Marotti. She believes that Trump could be guilty of obstruction of justice if Trump “implicitly encouraged” Cohen to lie, though it would be “more difficult to prove” than if Trump directly ordered him to lie.
Mimi Rocah, a former federal prosecutor in the Southern District of New York in both the Bush 43 and Obama administrations, believes there is evidence that Cohen wouldn’t have gone forward with his false testimony “without Trump’s approval or assent.” If that’s the case, Rocah thinks Trump could face criminal charges for Cohen’s lies as well. She recalled prosecuting mafiosi under a similar theory.
Stanford Law professor and former federal prosecutor David Alan Sklansky believed that there is “not much difference” between telling someone to lie and encouraging someone to lie. Further, he believes that even “minimal” encouragement is enough to prove aiding and abetting.
Joyce Vance, the U. S. Attorney for the Northern District of Alabama under Obama, recalled that Trump’s current lawyer, Rudy Giuliani, conceded on national television that Trump and Cohen discussed the testimony. To Vance’s mind, “it defies common sense to believe” that conversation didn’t expose Trump to “criminal involvement” in Cohen’s lies–even if it was nothing more than a “proverbial nudge, nudge, wink, wink.” As she sees it, the trick would be for a prosecutor to prove motive.
Harvard Law professor and former federal prosecutor Alex Whiting believes Trump would be guilty of aiding and abetting even if he merely encouraged Cohen to lie. He noted that while it’s more difficult to prove a person was encouraged to lie rather than told to lie, “the evidence is significant” that Trump pushed a party line and did nothing to stop Cohen from lying in accordance with that line. He added that Trump could be in a pickle even if there’s no criminal liability. He recalled that the standard for impeachment proceedings or the 2020 election will be “what do I really think happened here?” Based on the evidence, Whiting believes the answer suggests “peril for Trump.”
So the verdict is virtually unanimous–even if Trump merely encouraged Cohen to lie, he’s in a major legal pickle. And even if Trump simply twiddled his thumbs despite knowing Cohen was going to lie, he could potentially be in a legal pickle. Whatever the case, given the methodical way Mueller has worked over the last two years, we’re certain to find out. And given the evidence, Trump won’t like the anser.
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