Trump, Cohen, and Buzzfeed: Is This the Big One?
If the new Buzzfeed report is true, the legal debates about Trump and obstruction just got blown out of the water.
Buzzfeed News is reporting, based on the testimony of two anonymous law enforcement sources, that special counsel Robert Mueller has obtained hard evidence that President Trump ordered his lawyer, Michael Cohen, to lie to Congress about his business dealings in Russia. If true, this is the most consequential public development in the nearly two-year duration of the Mueller investigation.
For many critics of the president, the suspicion that Trump obstructed justice somewhere along the line in his dealings with the investigations into possible ties between his campaign and Russia has grown over the course of the investigation because of circumstantial evidence: Beginning with the firing of FBI director James Comey in May 2017, Trump has made no secret that he is deliberately trying to frustrate the ongoing investigations of his campaign’s potential contacts with Russia. But the evidence seen by the public has been only circumstantial. The danger for Trump has been, as former federal prosecutor Renato Mariotti wrote last January in Politico, that if someone “provides the special counsel with direct evidence of [Trump's] intent when firing Comey, he could ensure that Mueller will conclude he obstructed justice.”
But even that eventuality might be survivable for Trump. Some legal observers have argued that finding a “corrupt intent” in Trump’s use of his constitutional powers of executive oversight would fall short of establishing a charge of criminal obstruction. Two former top prosecutors on the Whitewater investigation, Sol Wisenberg and Robert Ray, made this case to me last year: “I think almost everything that Trump did, starting with the firing of Comey, criticizing Sessions for recusing himself, all of that stuff, allowing the attacks on Mueller to happen, it’s all terrible,” Wisenberg said. “But I don’t think it’s obstruction.”
Crucially, this skepticism of the “corrupt intent” model is shared by the man who is likely to be overseeing Mueller by the time he issues his final report: William Barr, the president’s nominee for attorney general. Last summer, Barr wrote a lengthy memo to top Justice Department officials arguing that case exactly: that Trump had been exercising lawful Article II constitutional powers when he fired Comey, and that finding a crime in an otherwise lawful action by probing for corrupt intent would rely on “a novel and legally insupportable reading of the law,” one that would “have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.”
“It is well settled that statutes that do not expressly apply to the president must be construed as not applying to the president if such application would involve a possible conflict with the president’s constitutional prerogatives,” Barr argued. As a result, the standard of “corrupt intent,” taken alone, would be insufficient to establish a charge of corruption for President Trump.
And here is where the new Buzzfeed story comes in.
Because if true, the allegations in the new report render the legal debate between the Mariotti view and the Barr-Wisenberg view moot. If this Buzzfeed report is accurate, and there is hard evidence to show that Trump ordered Cohen to commit perjury by lying to Congress, that would be obstruction, open and shut.
Buzzfeed’s anonymous sources suggest there is indeed hard evidence. “The special counsel’s office,” the report states, “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.”
The importance of these allegations simply cannot be overstated: If this is true, and Mueller can prove it, that’s the whole ball game.
All the ordinary caveats about anonymous sourcing apply here, times a thousand. It could turn out that these sources have incorrect information, or misled Buzzfeed. If so, it certainly wouldn’t be the first time an explosive Russiagate allegation blew up in a news outlet’s face.
It’s also possible, of course, that the interviews, emails, texts, and other documents Buzzfeed references don’t paint a complete picture on their own. In this case, Mueller would be at least partially relying on the testimony of Michael Cohen, which would give people who want to alibi the president a backdoor escape hatch. Which the White House is already trying to secure: “If you believe Cohen,” Trump lawyer Rudy Giuliani said in response to the Buzzfeed story, “I can get you a good all-cash deal on the Brooklyn Bridge.”
The good news is that either way, we're likely know the answers to these questions, for certain, in the near-to-medium future. This isn't like debating the existence of Bigfoot. It's like a hand of Texas Hold-em: People are pushing their chips into the center of the table. At some point, the river is going to come and everyone will have to show their cards.