Specifically, the report suggests that Trump “directed” Cohen to lie about negotiations to build a Trump Tower in Moscow. This was allegedly occurring while Trump was insisting publicly that he had no business dealings in Russia. It’s also worth noting that the story says Mueller’s team has additional evidence to corroborate Cohen’s claims, meaning they’re not simply relying on Cohen’s word.
If this story is true — and, for the record, Trump’s personal attorney Rudy Giuliani has officially denied the accusations — then it appears to be the strongest evidence yet that Trump is guilty of obstruction of justice.
I reached out to nine legal experts and asked them to assess the obstruction case against President Trump in light of this report. Their responses, edited for clarity, are below.
Jessica Levinson, law professor, Loyola Law School
There are a number of different obstruction of justice statutes. Did President Trump attempt to obstruct justice? That is very, very, very likely. (This is a lawyer’s way of saying “yes.”) Here I believe we would be looking at a possible case of obstruction of justice under 18 USC section 1505. This is obstruction of justice by obstructing proceedings before Congress or any other federal administrative agency or department.
Specifically, the statute requires that the prosecutor prove the defendant: 1) acted corruptly; and 2) at least attempted to influence, obstruct, or impede “the due and proper administration of justice” in a pending proceeding in any department or agency, or “the due and proper exercise of the power inquiry” in a congressional proceeding.
Assuming the BuzzFeed article is true, President Trump attempted to influence, obstruct, or impede a congressional proceeding by directing his personal attorney, Michael Cohen, to lie to Congress about the Moscow project. Trump purportedly told Cohen to lie about how long the project lasted, ordering him to falsely claim it ended months before it did. Why? Apparently to attempt to break the connection between himself and the Moscow project, and — here is the kicker — to limit the investigations into whether the Trump campaign conspired with the Russian government to interfere with the 2016 election.
So let’s take each prong of the crime. First, it is typically difficult to prove corrupt intent, and it depends on the facts and circumstances of the case. But the case may not be so difficult here. If President Trump’s goal in directing Cohen to lie was to reduce the connection between himself and the Moscow project for the purpose of limiting the Russia investigations, we have enough for corrupt intent.
Second, if President Trump directed Cohen to lie to Congress in order to interfere with the ongoing investigations, that would be enough to satisfy the second requirement of this statute.
Ciara Torres-Spelliscy, law professor, Stetson University
Michael Cohen already admitted in his plea deal with the special counsel that he lied to Congress about Trump Tower Moscow. Now BuzzFeed indicates that the president himself suborned [a legal term meaning to bribe or induce] perjury from Mr. Cohen. The new BuzzFeed revelations are important because they indicate that the special counsel has corroborating and contemporaneous evidence of Trump’s actions above and beyond Cohen’s testimony, which may indicate obstruction of justice, and that is a potentially a horse of a different color.
Andrew Wright, former associate White House counsel and senior fellow and founding editor at Just Security
If President Trump directed Michael Cohen to lie to Congress about his business interests in Russia, he is guilty of felony obstruction of justice. 18 USC Sec. 1505 says: “Whoever corruptly … endeavors to influence, obstruct, or impede the … due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House of the Congress” is guilty of a felony and up to five years in prison.
Michael Cohen has already pleaded guilty to false statements felony for these very lies. Trump’s direction would amount to suborning those false statements and “endeavoring to impede” the congressional inquiry. Their agreement to lie would also constitute a felony conspiracy. Moreover, here, none of the separation of powers complications of using presidential removal authority — firing Comey — as the basis of an obstruction charge are present. This would be a straight-up felonious effort to obstruct a legislative inquiry.
Jens David Ohlin, law professor, Cornell University
If Cohen testifies that Trump directed him to lie to Congress, I don’t think Congress will be able to ignore the startling revelation. Since it both touches the president directly and involves a crime against Congress, the Democrats will need to respond in some fashion. The most likely avenue is that they introduce articles of impeachment in committee without first waiting for the Mueller investigation to be finalized.
Introduction of the impeachment process doesn’t require Democrats to hold a vote, but it will send a strong signal that they consider lying to Congress to be a red line for them. In terms of the actual charge in the impeachment articles, directing someone to lie to Congress would be construed as an obstruction of justice, drawing obvious parallels to the Nixon impeachment.
Joshua Dressler, law professor, Ohio State University
If true, this constitutes the offense of suborning perjury, a serious felony of its own. Of course, suborning perjury is a form of seeking to obstruct justice. But what I think is most significant is that, if true, it represents a separate, independent felony. It is without question a high crime or misdemeanor under any plausible interpretation. It is, in other words, if believed, an impeachable offense.
Bob Bauer, law professor, New York University
The relevant law includes obstruction (18 USC § 1505), conspiracy to make false statements (18 USC §§ 1001 and 371), and aiding and abetting an offense against the United States (18 USC §2(a)). The only issue is the evidence, and we can be sure to hear from Donald Trump’s quarters that Cohen is lying and that he never directed Cohen to make the false statements.
We do not know all the specifics of Cohen’s account to the prosecutors, but what we do know — the White House’s involvement in the preparation of the testimony and the relationship between Cohen and the president in which Cohen did what he was told — does not bode well for Trump.
It is striking that former White counsel Don McGahn has said through his lawyers that his office knew nothing about the testimony; this points in the direction of a closed process in which the president personally directed the review, if not the preparation, of statements that he knew not to be true.
Then there is the email traffic cited in the BuzzFeed story that supports the Cohen narrative about the hotel negotiations and, along with law enforcement interviews, apparently corroborates Cohen’s testimony that the president directed him to lie. (Those emails suggest that Don Jr. faces serious problems with the account he gave to the Senate of his knowledge of the election-year hotel negotiations.)
Finally, while the immediate focus is on the president’s legal problems, this could also be the inescapable launching point for the impeachment process.
Miriam Baer, law professor, Brooklyn Law School
To prove subornation of perjury, a prosecutor has to prove a defendant procured someone else’s false testimony on a material matter. Subornation charges apply only in successful cases — where the perjury is “actually committed.” That might sound narrow, but in fact, federal law effectively punishes “attempted subornation” under several additional statutes.
First, if two or more persons conspired to suborn perjury, they could be charged under the conspiracy statute. Second, federal courts have held that subornation of perjury can serve as the basis of an obstruction charge. Obstruction broadly covers attempts to obstruct justice — and not just successful obstructions of justice.
Accordingly, if President Trump directed Michael Cohen to lie in congressional testimony — and, if as reported, there exists evidence that corroborates Michael Cohen’s contentions —President Trump’s vulnerability to impeachment and possibly criminal charges has become more heightened than it was even a few months ago.
Samuel Gross, law professor, University of Michigan
Is it obstruction of justice to direct a witness to lie to Congress under oath? Of course. Equally clear (if possible, more so) it’s suborning perjury, also a felony.
Renato Mariotti, former federal prosecutor, 2007 to 2016
Yes. If someone knowingly directs another person to lie to Congress, they are also guilty of lying to Congress. That is an easy question.