Michael Cohen, former personal lawyer to U.S. President Donald Trump, is sworn in during a House Oversight Committee hearing in Washington, D.C., U.S. (Photographer: Andrew Harrer/Bloomberg)

Cohen Shows How Hard It Is to Tie Trump to His Lies

(Bloomberg Opinion) -- If you’re looking for the most important sentence in Michael Cohen’s testimony Wednesday to the House Oversight and Reform Committee, here it is:

“Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates.”

On the one hand, Cohen’s explanation of how Donald Trump operates was a devastating account of how the president of the United States knowingly distorts the truth in the service of his personal goals. Trump doesn’t tell people to lie, as Cohen, his former lawyer and fixer, went on to explain. Rather, Trump directly lies to their faces and expects them to follow the false course he has set.

On the other hand, Cohen’s statement made it clearer than ever just how difficult it would be to convict Trump of high crimes and misdemeanors and to remove him from office. Implicit direction to lie is difficult to demonstrate to the satisfaction of Trump supporters who will want to place blame anywhere but on the president.

Trump may well have known that his confidant Roger Stone was in contact with WikiLeaks and its founder, Julian Assange, about the release of documents stolen by Russia — as outlined in the indictment of Stone in January. But the odds are good that Trump never directly ordered anyone to “collude,” just as he never directly ordered Cohen to lie. Very possibly, he just made it clear from the circumstances what he hoped and expected would happen.

Few would know better than Cohen how Trump “operates.” If Trump’s behavior with other aides was similar to that with Cohen, successful impeachment and removal seem further away than ever.

Consider Cohen’s full account of how he knew Trump wanted him to lie about negotiations with Russia to build a Trump Tower Moscow while he was running for president.

Cohen put it this way: “In conversations we had during the campaign, at the same time I was actively negotiating in Russia for him, he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing.”

Cohen concluded: “In his way, he was telling me to lie.”

This two-step procedure starts with something that has become familiar to presidential observers. Trump begins by offering a proposition that is 180-degrees counter to the truth. Here the false statement was that “there’s no business in Russia.”

Cohen and Trump both knew that was false. As Cohen made clear in his testimony, Trump asked him on at least a half-dozen occasions how the negotiations with Russia were going.

Once the baseline falsehood was established, Trump entered Phase 2 of his method: He announced the falsehood to the world. It’s much easier to tell a lie publicly if you’ve already told it privately.

From the combination of the private lie and the public lie, Cohen understood, Trump was indirectly instructing him that his narrative should follow Trump’s. Together they would project outward the falsehood on which they had settled privately.

It’s possible to imagine that, somewhere in his psyche, Trump genuinely believes the lies he tells at the moment he tells them. Maybe Trump even thought that saying “there’s no business in Russia” was somehow true because the deal was not final.

As Cohen explained it, Trump didn’t expect to win the election, and knew he could potentially make millions of dollars on a Trump Tower in Moscow. So maybe Trump thought that there was no business right now, although there could be in the future.

Regardless, Trump’s method, as described by Cohen, tells us a lot about how Trump surrounds himself with lies so seamlessly. Cohen wasn’t shy about adding that, in his view, people in the White House are still lying to Trump all the time. What he presumably meant was that, once Trump says something he believes, even if it’s false, those around him are expected to repeat it back to him — and to the world.

Upsetting as this is from the standpoint of morals and objective reality, Cohen’s account of how Trump lies and gets others to lie makes it exceedingly difficult to convict him in a Senate trial that would follow impeachment in the House of Representatives.

Trump’s Republican defenders will demand definitive proof that Trump directly instructed Cohen to lie under oath before Congress. They will similarly want definitive proof that he directly told associates to collude with Russia during the election.

But, at least in the case of Cohen, Trump didn’t issue a direct order to lie. He created circumstances in which his fixer knew what to do without directly telling him.

That gives Trump a fig leaf to cover the nakedness of his conduct. I wouldn’t go so far as to say that Trump has plausible deniability about making it clear that Cohen should lie. In a criminal trial, a defendant could potentially be convicted for implicit direction of a criminal act.

But implicit direction just won’t cut it in the political court of the Senate amid the partisan struggle of an impeachment trial. Explicit direction of an associate to obstruct justice might conceivably get Trump removed. Without the direct order, Republicans will not turn against him in large numbers.

Cohen also testified Wednesday that he overheard on speakerphone as Stone told Trump about a coming WikiLeaks document dump. That’s passive acceptance of information, but not direct collusion. If Trump never directed Stone or others to collude, then he followed the standard operating procedure that Cohen described.

Declining to give the order directly is a time-honored way for leaders to do their dirty work, stretching back to the kings of the Bible and Henry II seeking the death of Thomas Becket. That’s the company Trump finds himself in. And no one impeached King David or Henry II.

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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