Whither the veracity of BuzzFeed News’ recent report implicating President Donald Trump in a plot to suborn perjury from his one-time attorney, friend and fixer Michael Cohen? And does it really matter that much? Not really — at least that’s the consensus from a stable of legal experts recently queried by New York University Law Professor Ryan Goodman.
A Monday analysis for centrist legal blog Just Security titled, “Why It May Not Matter If BuzzFeed Got It Wrong: ‘Encouraging’ Perjury is Also a Crime,” cites eight high-profile attorneys who all essentially arrive at the same answer.
That answer is that if BuzzFeed is off on the details and the best allegation special counsel Robert Mueller might have is that Trump “encouraged” Cohen to lie, there are crimes other than conspiracy on the table. The caveat is that these offenses would be more difficult to prove beyond a reasonable doubt.
“Their views are remarkably uniform,” Goodman notes. “If President Trump encouraged, rather than directed, Cohen to lie to Congress, the President would still be guilty of a federal crime involving an obstruction of justice.”
That summary of those surveyed opinions takes at least a few leaps.
There’s a lot more to consider and quite a bit more that needs to happen (process, contradictory evidence, evidentiary standards, state of mind inquiries, etc.) in order for legal observers to move on from statements like “President Trump encouraged Michael Cohen to dissemble under oath” to ones like “Donald Trump is definitely a convicted felon under federal law.” It’s not actually so clear-cut and easy here.
Take, for example, this qualified assessment Goodman cites in his own analysis from former federal prosecutor Renato Mariotti:
Mere ‘encouragement’ is enough if Trump knew it was a lie and intended for Cohen to mislead Congress. But that can be difficult to prove unless Trump explicitly instructed Cohen, and there is no public evidence that indicates Trump did so.
Law&Crime reached out and plied other legal experts with Mariotti’s explanation of the “encouragement” angle for a hint at how difficult such an inquiry might be to prove beyond a reasonable doubt.
Those responses were essentially uniform, too: “I got some oceanfront property in Arizona…”
National security lawyer Bradley P. Moss didn’t discount the encouragement theory entirely, but said one wouldn’t “want to hang impeachment on that alone.”
“I agree it would be far more difficult to make a viable criminal liability claim if this comes down to mere ‘encouragement,'” Moss said in an email. “The government would face a significant hurdle in gathering sufficient circumstantial evidence to demonstrate that this wasn’t an issue of mere miscommunication. It would have to prove a deliberate effort by the president to convey his approval of what ultimately was erroneous testimony by Cohen. Is it feasible? Yes. Would you want to hang impeachment on that alone? No way.”
Bob Bianchi is a former N.J. county prosecutor who currently works as a criminal defense attorney and as a host on the Law&Crime Network. Bianchi at first cautioned that there’s substantial difference between what what might be needed to prove impeachment as opposed to supporting a criminal charge filed by a prosecutor:
Keep in mind that there are three moving pieces in these discussions that tend to get blurred involving President Trump and the Special Counsel–one criminal; the other impeachment (a political process that is far less legally stringent and quite malleable); and the truth which often is distorted by the lens/perspective of the person viewing the matter. Overall, from a legal/criminal law point of view, the question is more of a “sufficiency of proofs.” Prosecutors want evidence that doesn’t “dance on the head of a pin,” but rather, evidence that is solid enough to convince 12 jurors beyond a reasonable doubt of a person’s guilt. This kind of proof is far more stringent than is impeachment and/or the truth.
And here, of course, what counts is the level of proof needed for criminal prosecution–since we’re talking about the federal crime of suborning perjury.
“With prosecutors, it is proof that is not based upon speculation, unclear proofs, politics, or proofs that merely convince you,” Bianchi noted. “There must be solid, unequivocal evidence. This is especially so in cases that are proven by circumstantial evidence to support Cohen indicating he was instructed, or encouraged to lie, if he is even saying this to begin with.”
And, under the circumstances, that would be an exacting sort of inquiry, in Bianchi’s estimation:
If Cohen lied to Congress on his own (which is entirely possible as he wanted to help his “boss”) then there is nothing there to hold Trump accountable for. But, if Cohen were to say he was directed, or encouraged, to lie to Congress by Trump (again we don’t know if this is in fact true), then prosecutors would [consider Trump’s public appearance of coziness towards Russia], and so many other data points we have in the public record, and possibly argue circumstantially that Cohen is to be believed. But, it has to be shown in this scenario that the encouragement was intentional, purposeful, willing, and not merely assumed by Cohen, or a misunderstanding, or an outright lie.
Bianchi also notes that there might be ways to support the encouragement theory–like the fact of Cohen’s consultations with Trump’s team, Trump’s own statements after the fact and any extrinsic evidence–but it would still be a tall order.
“Either way, this issue comes down to facts, and facts sufficient to accuse an American President of a very serious charge,” Bianchi concluded. “Prosecutors will be very cautious, far more cautious than in cases involving just plain old ordinary citizens, before they will pull that trigger.”
National security lawyer Mark Zaid also noted the difficulty here:
Mere encouragement by the President for Michael Cohen to intentionally lie, in a sense an omission of overt action but still subtle insinuation that commands influence, would be very difficult to prove and unlikely to be pursued simply on the basis of Cohen’s testimony. Were this type of conduct to lead to criminal liability it would no doubt be based on documentary evidence that when read would lead most reasonable minds to conclude President Trump provided his tacit, albeit possibly silent, approval to Cohen to deliberately commit perjury before Congress. Anyone who has enjoyed Mafia movies would understand the obvious, yet no words needed, code that exists when the Boss approves a hit.
Harvard Law Professor emeritus Alan Dershowitz outright mocked the idea.
In an email, he said, “If every prosecutor who ‘encouraged’ a policeman to lie or if every defense attorney who ‘coached’ a witness to improve his story were to [be] prosecuted, our prisons would be filled with lawyers.”
“Those who want to expand the criteria for subordination of perjury to ‘get’ Trump at any cost are applying a double standard,” he added.
[image via Drew Angerer/Getty Images]
Editor’s note: this article has been amended to include additional comments and for clarity.
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