If the allegations prove true, the House will have no choice but to act to remove this president.
By Ryan Goodman
Co-Editor-in-Chief
Just Security
If the President of the United States directed his personal attorney and fixer to help sabotage the Russia investigation by lying to Congress, there is no turning back for the nation. Given the independent corroborating evidencethat special counsel Robert Mueller reportedly has to show that’s what the president did, things are only going to get worse for the White House from here.
Cohen’s lying to Congress (and to the Special Counsel’s Office) was not only about covering up a secret deal with the Kremlin during the heart of the campaign, a deal that potentially even included an illegal payoff for Putin personally. It was also a direct hit on the Russia investigation itself. The Special Counsel told the court that Cohen’s lies to both Congress and the Special Counsel were “intended to limit ongoing investigations into Russian interference in a U.S. presidential election, and the question of any links or coordination between a campaign and a foreign government.”
What makes the Cohen lies even worse—and yes, far worse than Watergate—is that it exposed any U.S. officials who were involved in orchestrating his false testimony to blackmail by Russia. As Barbara McQuade, former U.S. Attorney and professor at the University of Michigan Law School, wrote at Just Security, “in the context of counterintelligence investigations, lies can also compromise national security….A foreign adversary like Russia can use lies as leverage over government officials to coerce them into complying with its demands or else face exposure of the lies.” As former acting Attorney General Sally Yates testified in the context of Flynn’s lying about Russian contacts, “To state the obvious, you don’t want your national security adviser compromised with the Russians.” If Trump suborned false statements, the President would have exposed not only himself to Kremlin blackmail, but also other members of his team who, according to court documents and reporting, helped orchestrate his personal lawyer’s congressional testimony.
Take a step back and you can see how the national security dimensions of “RussiaGate” are what distinguish the case and, in many respects, makes it far worse than the case for Nixon’s or Clinton’s impeachment.
It is also, as with Nixon’s bad acts, an easy case on the law when it comes to a president’s suborning false statements and obstruction of justice. Even William Barr, the man nominated for attorney general with extreme views of presidential power, has written and testified (see exchanges with Sen. Lindsey Graham and Sen. Amy Klobuchar) that suborning perjury or inducing a witness to change their testimony is a criminal act for which no presidential power protects it. And in an op-ed in 2017 titled, “No One Is Above the Law,” staunch Trump defender, Alan Dershowitz wrote, “If a president’s actions, on the other hand, are unlawful—as President Nixon’s clearly were when he told subordinates to lie to the FBI and pay hush money—good intentions … would not be a defense. For purposes of the criminal law, presidents must be judged by the lawfulness or unlawfulness of their acts.”
What makes our current situation even more remarkable, and unsustainable, is that we will soon see the man who lied to Congress and the Special Counsel serving time in jail for his crime, while the man who likely directed him to lie remains free, boastful, and continues to threaten the legitimacy of the Justice Department’s investigations.
And this particular act of dishonesty is of national significance. The federal court wanted to impose a stiff penalty on Cohen for good reason. Judge William H. Pauley III stated that lying to Congress in this manner “standing alone warrant[s] serious punishment.” Judge Pauley sentenced Cohen to two months of imprisonment, three years of supervised release, and added a financial penalty “to recognize the gravity of the harm of lying to Congress in matters of national importance”—a sentence that would have been far higherif Cohen had not received credit for fully cooperating with the Special Counsel.
What’s more, Cohen is most likely just the tip of the iceberg. The ways in which several Trump associates lied or intentionally misled federal authorities (see this 19-page “Perjury Chart”), indicates the President may have been involved in an even more widespread conspiracy to suborn perjury, as otherclose observers of the Russia investigation and I have written.
What can Mueller prove in a criminal trial is different from what can be proven in the court of public opinion and in impeachment hearings. That said, as Cohen himself wrote on Twitter, “#Mueller knows everything!”
We can only hope that’s true about Mueller. With the apparent orchestration of lies by Trump associates on matters that go to the core of the Russia investigation, our nation’s security is vulnerable in ways to which Nixon’s offences in Watergate do not compare.
The road from here may very well lead to impeachment or prosecution once Trump leaves office. There are also steps along the way that can be taken.
One option is for the House Permanent Select Committee on Intelligence to make a criminal referral to the Justice Department for any person, the President of the United States included, when there is “credible evidence of a crime unearthed in the course of our investigations” like an individual directing a witness to lie to the Committee. I asked Just Security’s Andy Wright, a leading expert on congressional oversight, about that option. He wrote, “The House can refer the matter to the Justice Department, and the allegation about the President suborning Cohen’s perjury before Congress is within Mueller’s mandate — Mueller has already accepted a guilty plea from Cohen for those lies.” Either house of Congress can also formally move to censure the president, which may be a stepping stone to more formidable options.
But all we have today is a news report, albeit from two highly reputable journalists with a distinguished track record in uncovering matters core to this part of the Russia investigation. Their report contains no quotes from Cohen’s testimony, emails or other documents. It will be up to Congress, dogged journalism, and the FBI to help complete the public record.
If the allegations prove true, the House will have no choice but to act to remove this president.
The rule of law and our national security can’t withstand these ongoing threats without a powerful response by our institutions of government and the public. It’s time for political leaders and people of conscience, across party lines, to stand up in defense of the national interest.
Originally published by the Just Security, 01.18.2019, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.