Below is my column in The Hill newspaper on the controversy over the Buzzfeed story of President Donald Trump allegedly telling his former counsel Michael Cohen to lie to Congress. This weekend BuzzFeed stood by its story, though it declined to explain a disturbing discrepancy in the account. I disagreed with the call of Rudy Giuliani to investigate or sue BuzzFeed. If BuzzFeed had two officials associated with the Special Counsel making these allegations, it was right to run the story. My criticism is how the story was overblown by experts and members of Congress as a “slam dunk’ case for prosecution and impeachment despite the absence of any clear evidence or corroboration.
Here is the column:
First there was collusion. Then there was obstruction. Then there was subornation. As the Russia investigation has migrated to every new allegation, a host of experts have proclaimed conclusive grounds for the imminent prosecution and impeachment of President Trump, soon followed by calls for immediate impeachment proceedings, only to be followed by mitigating or conflicting evidence on each allegation.
The latest allegation called a “slam dunk” followed a BuzzFeed story that special counsel Robert Mueller has proof that Trump told his attorney, Michael Cohen, to lie to Congress. The same news cycle quickly began, even though the story was long on allegations and short on evidence. Then later that night, the Mueller team released a rare public statementthat proved to be the ultimate buzzkill for the breaking news: “BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.”
What is most striking about this boom and bust pattern is how it is repeated with such regularity and so little scrutiny in the media. The president may well be shown to have committed criminal or impeachable acts including subornation. That, however, will require concrete evidence and the satisfaction of the elements of a specific crime. Mueller may supply such facts or he may not. It is the seeming refusal to accept the latter possibility that has increasingly distorted media coverage.
The subornation crime is the latest example. Cohen said he gave false information to federal investigators and to Congress about the effort to build a Trump Tower in Moscow. Cohen told Congress that the attempts to secure the deal ended in January 2016, well before the first Republican presidential primary. Cohen now maintains that attempts continued until June 2016, the same month as the infamous meeting in Trump Tower in New York between Donald Trump Jr., Jared Kushner, Paul Manafort, and Russians promising evidence of crimes committed by Hillary Clinton or her private foundation. It also was just a few months before the election.
The discrepancy raises reasonable questions about statements made by Trump during the campaign, as well as statements made by Trump Jr. and Ivanka Trump about their own involvement in the planning. But those statements do not, on their face, make a strong case for criminal charges. Trump denied “any business deal” in Moscow, which is not necessarily contradicted by the account of Cohen, who was setting up a potential deal that fell through and did not result in the meeting being discussed.
Trump later insisted he never denied pursuing deals. In November 2018 after the Cohen plea, Trump said about the election, “There was a good chance that I would not have won, in which case I would have gone back into the business. Why should I lose lots of opportunities?” In the end, these statements were not made under oath or to investigators. Even if Trump is viewed as lying about the deal, it is not a crime for politicians to lie to the American public. If it were, Washington would be a ghost town.
Then there is statement by Trump Jr. that his knowledge of the deal was “peripheral” and claims by Ivanka of having marginal involvement. Those descriptions are difficult to use as a basis for perjury alone. They are subjective views of the relative involvement or knowledge of one project among many business endeavors. While there may be other challenged statements, it is quite difficult to imagine a charge that Trump Jr. should have said “occasional” or “periodic” knowledge rather than “peripheral.”
That brings us back to subornation. Cohen has suggested that he lied to Congress either with the knowledge or the direction of Trump. If that were proven, the president could be guilty of suborning perjury, which is a clear federal crime and would be an obvious ground for impeachment. Moreover, his nominee for attorney general, William Barr, testified in his Senate hearing this week that he does believe a president can be charged with subornation and obstruction for encouraging people to lie.
However, Cohen also has said that he tailored his testimony to public statements by Trump, which is materially different from being told to lie. To establish this crime under Justice Department guidelines, prosecutors must show that a “defendant procured the perjury corruptly, knowing, believing, or having reason to believe it to be false testimony” and that the “defendant knew, believed, or had reason to believe that the perjurer had knowledge of the falsity of his or her testimony.” That requires evidence of intent and knowledge by Trump of when the negotiations or discussions ended, as well as a clear effort to get Cohen to move that date back.
Finally, there is the question of whether such a claim alone would be sufficient for impeachment. Subornation was indeed part of both the impeachment articles against Richard Nixon and Bill Clinton. When I testified during the Clinton impeachment hearings in 1998, I maintained that lying under oath is indeed a “high crime and misdemeanor” for the purpose of impeachment. The same is true about subornation if proven.
Yet, many members of Congress who called for possible impeachment proceedings this week also voted against the impeachment of Clinton on the same grounds back then. Monica Lewinsky recently confirmed that Clinton pressured her to lie to federal investigators and a federal court. Clinton had brought in his friend, Vernon Jordan, who not only arranged for the lawyer who drafted and filed a false affidavit but also helped Lewinsky, who had very little work experience, secure a lucrative job offer with Revlon, a company where Jordan served on the board of directors.
So Clinton lied under oath, lied to federal investigators, and allegedly suborned perjury. A judge later reaffirmed that his testimony was obvious perjury. When Article III containing those allegations was brought to the floor, the voting members included many current Democratic leaders who insisted that none of it satisfied the standard for impeachment. In the House, they included Nancy Pelosi, Maxine Waters, Benjamin Cardin, Elijah Cummings, Steny Hoyer, Jerry Nadler, and others. Over in the Senate, Joe Biden, Charles Schumer, Richard Durbin, Dianne Feinstein, Patrick Leahy, Robert Menendez, and others voted against conviction.
None of this means a case will not be made for subornation, obstruction, or other crimes against Trump. Moreover, if proven, Trump should be impeached. While these members were wrong in 1998, they would be justified in voting for impeachment on the very grounds they rejected when a Democratic president was the one being judged. For the moment, however, the only thing that is worse than ignoring the evidence of crimes by a president is ignoring the absence of evidence against a president.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.