BuzzFeed's Trump-Cohen Story Describes Clearly Impeachable Crimes

(Bloomberg Opinion) -- It’s all about the coverup. If the BuzzFeed story reporting that Donald Trump, while president, ordered his lawyer Michael Cohen to lie to Congress is true, it’s more than enough to constitute high crimes and misdemeanors under the Constitution — whether Trump’s campaign “colluded” with Russia or not.

On that second, separate issue of collusion, the story is suggestive but not definitive. It says that Trump knew all about and directed Cohen’s negotiations with Russian intermediaries during the 2016 campaign to try to build a Trump Tower in Moscow. That’s highly problematic, but not necessarily criminal or even proof of conspiring to affect the election. If the story BuzzFeed broke Thursday night is true, we know that Trump wanted very badly to hide the facts of the negotiation, even after the fact. But we don’t know how deep the Trump campaign’s interactions with Russians went.

The reactions of House Democrats to the BuzzFeed story are therefore appropriate. The crucial unanswered questions are, of course, whether the story is accurate, and whether it can be proved by more than Cohen’s say-so, as the story suggests.

Friday evening, almost a day after the story was published, a spokesman for the special counsel’s office, Peter Carr, issued a denial: “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.” BuzzFeed’s editor in chief, Ben Smith, said the news outlet stood by its reporting and the reporters’ sources.

BuzzFeed reporters Jason Leopold and Anthony Cormier say their sources are in law enforcement, which in the course of the various Trump-related investigations is highly unusual. Special counsel Robert Mueller’s team hasn’t leaked, to the extent it is possible to determine. So the leak might come from the FBI.

That’s not completely unprecedented. Bob Woodward and Carl Bernstein’s source, Deep Throat, for many of their Washington Post Watergate stories turned out to be FBI Deputy Director Mark Felt. It is, of course, unethical and possibly illegal for the Federal Bureau of Investigation to leak details about an ongoing investigation. The only justification would be genuine concern that somehow, the details might not otherwise reach the public — concern that could conceivably be traced to William Barr’s testimony Tuesday in his confirmation hearing for the post of attorney general.

Barr said he would treat Mueller’s report as a confidential document, and publish his own attorney general’s report. That’s correct, according to the regulations governing the special prosecutor. But it raises the prospect of a brief, compressed or even redacted Justice Department report growing out of the Mueller investigation. It’s possible that this law enforcement leak is intended to make sure key facts about Trump reach the public, regardless of Barr’s future actions.

It’s also possible that the leakers think Mueller’s report is coming soon, and wanted to beat its release. Getting the story out now could be intended to weaken the dramatic effect of the report’s release — or to enhance it.

In either case, the central revelation of the BuzzFeed story is that Trump directed Cohen to lie to Congress about his Russia negotiations. In legal terms, this is called suborning perjury — the very essence of a coverup.

Cohen previously said under oath in court that Trump directed him to violate federal campaign finance law by making payoffs to Stormy Daniels, the adult-film actress who said she had a sexual affair with Trump. That was evidence of a felony.

But this charge, if true, goes far beyond that one.

First, the new allegations involve actions Trump made while in office. The Daniels payoff took place while Trump was a candidate.

Directing a subordinate to lie to Congress to cover up your own conduct is unquestionably obstruction of justice. It’s unquestionably the kind of high crimes and misdemeanors contemplated by the Constitution as qualifying for impeachment.

No one could realistically say that such an order from Trump didn’t qualify as an impeachable offense. (Of course, they could still dispute whether it happened.) In contrast, directing Cohen to pay off Daniels was an act that the president and his supporters could try to defend, however awkwardly, by saying that Trump didn’t intend for Cohen to do anything illegal and left it to his lawyer, Cohen, to make the payoff legally.

Trump couldn’t say that about a direction to lie to Congress under oath. That’s obviously criminal.

Second, the new allegations don’t have to do with the president trying to hide something sexually embarrassing, like his encounter with Daniels. President Bill Clinton lied under oath about his affair with White House intern Monica Lewinsky, and Democrats successfully defended him against removal from office after impeachment. The Daniels affair is arguably analogous.

This charge isn’t. Cohen’s lies to Congress — for which he has already pleaded guilty — were about his negotiations to go to Russia and meet government officials during the campaign in connection with a possible Trump Tower project. That’s not a sexual peccadillo. It’s conduct that Trump allegedly wanted suppressed because it makes him look as if he might have been colluding with Russia.

The BuzzFeed story contains the claim that Trump was directly involved in directing Cohen to negotiate with Russia, and that he told Cohen to make the deal happen. That might or might not lead to further revelations about potential collusion.

Regardless, the coverup can sometimes be worse than the underlying conduct. If the story is verified, Trump’s coverup led him to clearly, incontrovertibly impeachable conduct. Period.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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