Jurisprudence

All the Crimes Donald Trump May Have Committed if He Instructed Michael Cohen to Lie to Congress About Russia

Donald Trump and Michael Cohen.
Donald Trump and Michael Cohen.
Photo illustration by Slate. Photos by Drew Angerer/Getty Images and Mandel Ngan/AFP/Getty Images.

Life in the Trump era is a bit like living just downwind of the city dump. There are always unsavory odors, but every few days some particularly putrescent chunk of refuse blows into your yard. After a while, it becomes easy to wave off even the most pestilent and dangerous effluvia as just more of the same old routine debris.

The Democratic precincts of the Capitol are aflame over the report by BuzzFeed News that President Donald Trump personally directed his former attorney Michael Cohen to lie to Congress about the duration and extent of Trump’s efforts to secure a deal for a Trump Tower in Moscow. The question for a weary nation is whether the outrage is warranted. Is this the tipping point? Or just more debris?

It could be very important, but much remains unknown, and everyone should maintain their equilibrium.

If Trump did direct Cohen to lie to Congress, that is a federal felony, indeed a handful of them. Cohen has already pleaded guilty to lying to Congress in 2017 in violation of 18 U.S. Code Section 1001 when he told the Senate Intelligence Committee that negotiations for a Moscow Trump Tower ended in January 2016, when in fact they continued into the summer of that year. If he was under oath, he also committed perjury, 18 U.S Code Section 1621.

If Trump counseled, commanded, or induced Cohen to lie to Congress, then Trump himself is guilty of the same crimes as Cohen under the federal aiding and abetting statute, 18 U.S. Code Section 2. Moreover, inducing another person to lie under oath to Congress constitutes the separate crimes of subornation of perjury, 18 U.S Code Section 1622, and two flavors of obstruction of justice, 18 U.S. Code Sections 1505 and 1512.

Now, one can only be convicted for lying or suborning lies if the lie at issue is “material” in the sense of being relevant to the subject of the underlying inquiry and having some tendency to influence the decision of the agency or tribunal. Trump could try to argue that the point about which he allegedly induced Cohen to lie was not “material” because it concerned only the duration of admitted negotiations over a Moscow Trump Tower. But that hardly flies inasmuch as Trump’s connections to Russia during the 2016 campaign are at the core of both the Mueller investigation and the Senate Intelligence Committee’s inquiries.

If Trump was actively pursuing a Moscow real estate deal (reported by BuzzFeed to offer profits of up to $300 million) deep into the 2016 campaign, the hope of such a large payday would have given Trump an incentive to be responsive to Russian interests. Indeed, there is strong circumstantial evidence of just such responsiveness. For example, just before the July 2016 Republican Party presidential nominating convention, the party’s platform was suddenly altered to oppose giving aid to Ukraine in its fight against Russian-backed separatists.

Similarly, the fact that candidate Trump continued to pursue highly profitable Russian real estate ventures while denying any financial connection to Russia would have been known to the Kremlin and would have given the Russian government leverage over Trump and an interest in Trump’s electoral success. Regardless of whether Russia used that leverage or whether Trump responded to it if used, the existence of potential leverage was material to Congress (and to Mueller). Inducing Cohen to lie about it would therefore be a federal felony.

That said, due to Department of Justice policy, special counsel Robert Mueller is highly unlikely to indict a sitting president. Thus, the real question is whether Trump’s alleged subornation of Cohen’s perjury is a plausible basis for impeachment.

The intimate connection between Cohen’s lies and the Russia investigations distinguishes the BuzzFeed story from the earlier disclosure that Trump directed Cohen to pay off two reported paramours to keep them quiet during the election. The hush money payments were disgraceful and may have been criminal violations of campaign finance law (although the latter point is debatable). However, they can (barely) plausibly be explained, not as an attempt to influence the election, but to save Trump from personal embarrassment with his wife and son. One doubts that we want to start impeaching presidents for, as candidates, suppressing unpleasant facts about their personal lives. In any case, the essence of the mistress payoffs is far too close to Bill Clinton’s lies about consensual sex with Monica Lewinsky for any Democrat with a trace of intellectual honesty to seek impeachment entirely on that ground.

The Cohen subornation of perjury allegation is different from both the mistress payoffs and Clinton’s lies about sex.

First, if proven, unlike the mistress payoffs, the criminality of suborning perjury before Congress is indisputable.

Second, as the Clinton case proved, perjury is not necessarily impeachable. The essence of impeachable conduct is that it implicates a president’s fitness for office. Unlike both the mistress payoffs and Clinton’s dalliance, Cohen’s lies and Trump’s alleged efforts to secure them concern questions central to this president’s fitness for office: Has he been compromised by a foreign power? Even if that can’t be proven, is he willing to commit felonies to obstruct an investigation into that possibility? If the answer to those questions, or either of them, is yes, then impeachment is a live, constitutionally viable option.

The framers were unequivocal in their insistence that impeachment is available to remove a president in thrall to a foreign power. And the case of Richard Nixon provides ample precedent for articles of impeachment based on presidential subornation of perjury to obstruct an investigation of the circumstances of his own election.

All that having been said, people shouldn’t overreact to the BuzzFeed report. It is, so far, only an allegation. The article asserts that:

The special counsel’s office learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents. Cohen then acknowledged those instructions during his interviews with that office.

A great many folks seemed to have jumped to the conclusion that these witnesses and documents directly corroborate Cohen’s claims that Trump instructed him to lie. That seems improbable. Trump famously doesn’t use email. He obviously tweets, but it seems unlikely that he would be fool enough to text Cohen telling him to lie. It’s possible that Trump discussed having Cohen lie with others and had them pass that instruction along—after all, Nixon was on tape doing just that. But the intermediary of such a communication would have to be improbably loyal or an incredible idiot.

What seems more likely than slam-dunk proof is that documents exist from which one can reasonably infer illegal Trump instructions to Cohen, but that the only direct evidence Trump gave such instructions is Cohen’s own testimony. And on one point at least, Rudy Giuliani is right—Cohen is a liar with an incentive to save his own skin. In my prosecutor days, I convicted a fair number of folks based in part on the testimony of cooperating crooks, but the rule of every such case is that the corroboration must be rock solid.

In short, the BuzzFeed scoop could be a big deal, but the devil remains in the undisclosed details.