Lawmakers to Investigate Report That Trump Directed Cohen to Lie to Congress

House Democrats say they will look into whether President Trump asked former lawyer Michael Cohen to commit perjury

WASHINGTON—Lawmakers said they would investigate a report that President Trump directed his former lawyer Michael Cohen to lie to Congress about the president’s involvement in a real-estate deal with Russia during the 2016 campaign.

.. “The allegation that the President of the United States may have suborned perjury before our committee in an effort to curtail the investigation and cover up his business dealings with Russia is among the most serious to date,” he tweeted.

.. Mr. Trump in a tweet Friday morning suggested Mr. Cohen was “lying to reduce his jail time,” but didn’t specify what he believed his former lawyer was lying about. Mr. Cohen was already sentenced last month to three years in prison.

.. Responding to the reported allegation, Rudy Giuliani, a lawyer for Mr. Trump, questioned Mr. Cohen’s credibility. “Haven’t checked it out but if you believe Cohen I can get you a good all-cash deal on the Brooklyn Bridge,” Mr. Giuliani said via text message.

.. Other Democratic members of the panel called for severe consequences if Mr. Trump is found to have directed his lawyer to lie to Congress. “If the @BuzzFeed story is true, President Trump must resign or be impeached,” Rep. Joaquin Castro (D., Texas) said on Twitter.

Rep. Ted Lieu (D., Calif.), a member of the House Judiciary Committee, said in a tweet that the report “establishes a clear case of obstruction of justice,” and said: “It is time for the House Judiciary Committee to start holding hearings to establish a record of whether @POTUS committed high crimes.”

.. Buzzfeed News reported late Thursday, citing two law-enforcement officials, that Mr. Cohen had told special counsel Robert Mueller that the president had directed him to tell Congress in his 2017 testimony that negotiations for a Trump Tower in Moscow had ended in January 2016, when in fact they had continued through June of that year—a month after Mr. Trump effectively won the GOP nomination. Buzzfeed also reported that Mr. Mueller had evidence corroborating Mr. Trump’s direction of Mr. Cohen, including interviews and documents.

.. Suborning perjury is a crime that constitutes obstruction of justice. William Barr, Mr. Trump’s attorney general nominee, said in his confirmation hearing earlier this week that “a president persuading a person to commit perjury” was obstruction.

.. “Listen, if Mueller does have multiple sources confirming Trump directed Cohen to lie to Congress, then we need to know this ASAP. Mueller shouldn’t end his inquiry, but it’s about time for him to show Congress his cards before it’s too late for us to act,” Rep. Chris Murphy (D., Conn.) tweeted.

 

Trump Tweets Lengthy Attack on F.B.I. Over Inquiry Into Possible Aid to Russia

WASHINGTON — President Trump on Saturday unleashed an extended assault on the F.B.I. and the special counsel’s investigation, knitting together a comprehensive alternative story in which he had been framed by disgraced “losers” at the bureau’s highest levels.

In a two-hour span starting at 7 a.m., the president made a series of false claims on Twitter about his adversaries and the events surrounding the inquiry. He was responding to a report in The New York Times that, after he fired James B. Comey as F.B.I. director in 2017, the bureau began investigating whether the president had acted on behalf of Russia.

In his tweets,

  • the president accused Hillary Clinton, without evidence, of breaking the law by lying to the F.B.I. He claimed that
  • Mr. Comey was corrupt and best friends with the special counsel, Robert S. Mueller III.
  • He said Mr. Mueller was employing a team of Democrats — another misleading assertion — bent on taking him down.

Individually, the president’s claims were familiar. But as the special counsel’s inquiry edges ever closer to him, Democrats vow a blizzard of investigations of their own and the government shutdown reaches record lengths, Mr. Trump compiled all the threads of the conspiracy theory he has pushed for many months in an effort to discredit the investigation.

Mr. Trump accused the F.B.I. of opening “for no reason” and “with no proof” an investigation in 2017 into whether he had been working against American interests on behalf of Russia, painting his own actions toward Russia as actually “FAR tougher” than those of his predecessors.

The Times article, published Friday evening, reported that law enforcement officials became so alarmed by Mr. Trump’s behavior surrounding his firing of Mr. Comey that they took the explosive step of opening a counterintelligence investigation against him.

Naming several of the bureau’s now-departed top officials, including Mr. Comey and his deputy, Andrew G. McCabe, Mr. Trump said the F.B.I. had “tried to do a number on your President,” accusing the “losers” of essentially fabricating a case. “Part of the Witch Hunt,” he wrote — referring dismissively to the investigation now being overseen by Mr. Mueller.

At the time he was fired in May 2017, Mr. Comey had been leading the F.B.I.’s investigation into Russia’s attempts to influence the 2016 presidential election, and the officials believed that his removal, in hindering the inquiry, posed a possible threat to national security. Their decision to open the case was informed, in part, by two instances in which Mr. Trump tied the firing to the Russia investigation.

The inquiry they opened had two aspects, including both the newly disclosed counterintelligence element and a criminal element that has long been publicly known: whether the firing constituted obstruction of justice.

When Mr. Mueller was appointed days later, he took over the joint inquiry as part of his larger investigation of Russia’s action in 2016 and whether anyone on the Trump campaign conspired with Moscow. It is not clear whether he is still pursuing the counterintelligence matter, and no public evidence has emerged that Mr. Trump himself secretly conspired with the Russian government or took directions from it.

Mr. Trump indicated on Saturday that he had not known of the existence of the counterintelligence investigation before the Times article, and he did not dispute the newspaper’s reporting.

But he made clear that he viewed any such inquiry as illegitimate from the start. He presented it, without evidence, as part of a vast, yearslong conspiracy to undo his presidency.

In the tweets, Mr. Trump defended his decision to fire Mr. Comey — “a total sleaze!” — at length, accusing the former director of overseeing a “rigged & botched” investigation of Mrs. Clinton, and leading the agency into “complete turmoil.” Democrats and Republicans alike wanted Mr. Comey removed, he said.

“My firing of James Comey was a great day for America,” Mr. Trump wrote. “He was a Crooked Cop.”

Bill Barr: Mueller’s “Obstruction” Theory

Indeed,the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful, subversive acts.

The President, as far as I know,is not being accused of engaging in any wrongful act of evidence impairment. Instead, Mueller is proposing an unprecedented expansion of obstruction laws so as to reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution. It appears Mueller is relying on 18 U.S.C. §1512, which generally prohibits acts undermining the integrity of evidence or preventing its production. Section 1512 is relevant here because, unlike other obstruction statutes, it does not require that a proceeding be actually “pending” at the time of an obstruction, but only that a defendant have in mind an anticipated proceeding. Because there were seemingly no relevant proceedings pending when the President allegedly engaged in the alleged obstruction, I believe that Mueller’s team is considering the “residual clause” in Section 1512 — subsection (c)(2) —as the potential basis for an obstruction case. Subsection (c) reads: (c) Whoever corruptly– (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction]. [emphasis added].

As I understand the theory, Mueller proposes to give clause (c)(2), which previously has been exclusively confined to acts of evidence impairment, a new unbounded interpretation. First, by reading clause (c)(2)in isolation, and glossing over key terms, he construes the clause as a free- standing, all-encompassing provision prohibiting any act influencing a proceeding if done with an improper motive. Second, in a further unprecedented step, Mueller would apply this sweeping prohibition to facially-lawful acts taken by public officials exercising of their discretionary powers if those acts influence a proceeding. Thus, under this theory, simply by exercising his Constitutional discretion in a facially-lawful way — for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power ~ a President can be accused of committing a crime based solely on his subjective state of mind. As a result, any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.

If embraced by the Department, this theory would have potentially disastrous implications, not just for the Presidency, but for the Executive branch as a whole and for the Department in particular. While Mueller’s focus is the President’s discretionary actions, his theory would apply to all exercises of prosecutorial discretion by the President’s subordinates, from the Attorney General down to the most junior line prosecutor. Simply by giving direction on a case, or class of

.. cases, an official opens himself to the charge that he has acted with an “improper” motive and thus becomes subject to a criminal investigation. Moreover, the challenge to Comey’s removal shows that not just prosecutorial decisions are at issue. Any personnel or management decisions taken by an official charged with supervising and conducting litigation and enforcement matters in the Executive branch can become grist for the criminal mill based solely on the official’s subjective State of mind. All that is needed is a claim that a supervisor is acting with an improper purpose and any act arguably constraining a case — such as removing a U.S. Attorney — could be cast as a crime of obstruction.

.. It is inconceivable to me that the Department could accept Mueller’s interpretation of §1512(c)(2). It is untenable as a matter of law and cannot provide a legitimate basis for interrogating the President. I know you will agree that, if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime — not a debatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.

.. First, the sweeping interpretation being proposed for § 1512’s residual clause is contrary to the Statute’s plain meaning and would directly contravene the Department’s longstanding and consistent position that generally-worded statutes like § 1512 can not be applied to the President’s exercise of his constitutional powers in the absence of a“clear statement”in the statute that such an application was intended.

Second, Mueller’s premise that, whenever an investigation touches on the President’s own conduct, it is inherently “corrupt” under § 1512 for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President’s supervisory authority. Moreover, such a limitation cannot be reconciled with the Department’s longstanding position that the “conflict of interest” laws do not, and cannot, apply to the President, since to apply them would impermissibly “disempower” the President from supervising a class of cases that the Constitution grants him the authority to supervise.

.. Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.

.. Fourth, even if one were to indulge Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt”unless the President and his campaign were actually guilty ofillegal collusion. Because the obstruction claim is entirely dependent on first finding collusion, Mueller should not be permitted to interrogate the President about obstruction until has enough evidence to establish collusion.

 

The Barr Memo Is a Commendable Piece of Lawyering

It is exactly what we need and should want in an attorney general of the United States: the ability to reason through complex legal questions in a rigorously academic way. Not to bloviate from the cheap seats, but to think these issues through the way a properly functioning Justice Department does: considering them against jurisprudence, statutes, rules, regulations, and Office of Legal Counsel (OLC) opinions, with a healthy respect for facts that we do not know or about which we could be wrong — facts that could alter the analysis.

.. Barr was not only attorney general in the Bush 41 administration; he also served in the weighty positions that Rosenstein and Engel now occupy.
.. Barr wrote not as an advocate representing someone in the investigation, but as a former high-ranking government official concerned about the institutions of the executive branch, particularly the Justice Department. Special Counsel Mueller’s apparent obstruction theory may have been conceived with the specific facts of President Trump’s situation in mind — Trump’s expression of hope that the FBI would drop any investigation of Michael Flynn, his decision to fire FBI director James Comey. But while a prosecutor may believe his application of a legal principle is narrow, once that application becomes a precedent, only the limits of logic curtail its further, potentially paralyzing extension... As Barr elaborates, if a president may be prosecuted for obstruction based on carrying out the executive’s constitutional prerogatives — exercises of prosecutorial discretion, giving direction to the course of an investigation, making personnel and management decisions — then every other official in the Justice Department is similarly vulnerable. The apprehension that proper and necessary acts could be construed as improperly motivated, and therefore as actionable obstruction, would profoundly undermine the administration of justice.

.. note that Barr took pains to caveat that many facts of Mueller’s investigation are unknown to him and the rest of the public. Barr’s legal and policy views were based on publicly reported information; if it turns out that Mueller is in possession of new facts that would alter Barr’s assessment, then his assessment would be altered accordingly... Indeed, Democrats and Trump critics should be encouraged by Barr’s analysis. Put aside that they should be impressed by its high quality. Barr is very far from saying that a president may never be prosecuted for obstruction. Invoking the Nixon and Clinton precedents as support, he asserts that

if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction

.. Barr’s argument is narrow. Mueller appears to be relying on Section 1512 of the federal penal code, an obstruction statute that contains a “catch-all” provision (subsection (c)(2)). This provision targets anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” (Emphasis in Barr’s memo, not in the statute.) Barr’s point is that, to avoid constitutional problems (e.g., vagueness, infringement on Article II authorities), “otherwise” must be read to refer to the types of innately obstructive acts that precede it (in subsection (c)(1)) — “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.”