Why It May Not Matter If BuzzFeed Got It Wrong: “Encouraging” Perjury is Also a Crime

Assume that the BuzzFeed report got it wrong and that President Donald Trump did not direct his then-personal attorney Michael Cohen to lie to Congress. As a matter of law, what would result if President Trump instead only encouraged Cohen to lie to Congress? There’s evidence in the public record that at least points toward a conclusion that’s what President Trump did–evidence that principally includes court documents filed by Cohen’s attorneys and the Special Counsel. I asked several leading legal experts to analyze this question. Their views are remarkably uniform: If President Trump encouraged, rather than directed, Cohen to lie to Congress, the President would still be guilty of a federal crime involving an obstruction of justice.

The experts provided a range of insights about the kinds of evidence that would be needed to prove that the President encouraged Cohen and about the inferences that can be drawn from the relationship between the two men at the time, the President’s having a conversation with Cohen about his testimony in advance, and other matters.

Before providing the experts’ views, here is the prompt I sent to each of them:

What, if any, legal significance is there between the following two scenarios?

A. President Trump directed Michael Cohen to lie to Congress.
B. President Trump knew in advance that Michael Cohen was going to lie to Congress, and Trump gave Cohen his approval or encouragement.

At the time, Cohen was Trump’s personal lawyer.

Another way of putting the question: if Scenario B were true, would President Trump be potentially guilty of a crime? The same crime as Scenario A?

Please feel free to address these questions however you wish. The following parts of the publicly available record may be useful to your analysis:

1. Sentencing memo on behalf of Michael Cohen:

“Furthermore, in the weeks during which his then-counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House-based staff and legal counsel to Client-1.”

2. The Special Counsel’s sentencing memorandum says:

“Third, Cohen provided relevant and useful information concerning his contacts with persons connected to the White House during the 2017–2018 time period.

Fourth, Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it.”

3. Lanny Davis told Bloomberg Radio:

“I don’t know whether they were aware that it was not accurate, but I know that Mr. Mueller wrote in his sentencing memo that Mr. Cohen published the testimony before he gave it and that he consulted with White House officials before he gave it so that they knew that the testimony was going to be what Michael Cohen knew to be false testimony about the Moscow tower.”

“The inevitable conclusion is that Mr. Trump and the White House knew that Michael Cohen would be testifying falsely to Congress and did not tell him not to.”

4. Sentencing memo on behalf of Michael Cohen:

“Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then-champion of Client-1, to support and advance Client-1’s political messaging. At the time that he was requested to appear before the Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence, Michael was serving as personal attorney to the President, and followed daily the political messages that both Client-1 and his staff and supporters repeatedly and forcefully broadcast. Furthermore, in the weeks during which his then-counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House-based staff and legal counsel to Client-1.

As such, he was (a) fully aware of Client-1’s repeated disavowals of commercial and political ties between himself and Russia, as well as the strongly voiced mantra of Client-1 that investigations of such ties were politically motivated and without evidentiary support, and (b) specifically knew, consistent with Client-1’s aim to dismiss and minimize the merit of the SCO investigation, that Client-1 and his public spokespersons were seeking to portray contact with Russian representatives in any form by Client-1, the Campaign or the Trump Organization as having effectively terminated before the Iowa caucuses of February 1, 2016.”

5. Sentencing memo on behalf of Michael Cohen:

“We address the campaign finance and false statements allegations together because both arose from Michael’s fierce loyalty to Client-1. In each case, the conduct was intended to benefit Client-1, in accordance with Client-1’s directives.”

6. In Cohen’s prepared remarks during his sentencing hearing, he said:

“Recently, the President Tweeted a statement calling me weak, and he was correct, but for a much different reason than he was implying.  It was because time and time again I felt it was my duty to cover up his dirty deeds rather than to listen to my own inner voice and my moral compass.  My weakness can be characterized as a blind loyalty to Donald Trump, and I was weak for not having the strength to question and to refuse his demands.”

Here are the experts’ views (emphases added in bold by me):

Harry Litman (@harrylitman), served as U.S. attorney and deputy assistant attorney general. He teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science. He is also a Washington Post contributing columnist:

The feature of President Trump’s directing the lies in scenario A is pivotal. If Trump directed Cohen to lie to Congress, he would have criminal liability for all of Cohen’s acts, as well as other crimes. The likely menu of crimes is obstruction of justice, conspiracy to commit offense against the United States, false statement liability, and possibly subornation of perjury (if Cohen took an oath, which remains unclear). Under scenario B, by contrast, Trump arguably could have aiding and abetting liability (18 U.S.C. §2) if on the facts his encouragement aided and abetted Cohen. But the scenario falls short of a criminal conspiracy and makes an obstruction charge a stretch. Prosecutors also conceivably pursue a charge for misprision of felony under 18 U.S.C. §4 for concealing or at least not making known Cohen’s crime.

Renato Mariotti (@renato_mariotti), partner at Thompson Coburn LLP, CNN legal analyst, and member of the board of editors of Just Security. He served as a federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney’s Office for the Northern District of Illinois:

There is no question that Trump committed a crime if he directed or corruptly persuaded Cohen to lie to Congress. Mere “encouragement” is enough if Trump knew it was a lie and intended for Cohen to mislead Congress. But that can be difficult to prove unless Trump explicitly instructed Cohen, and there is no public evidence that indicates Trump did so. It is often the case that criminals subtly suggest in indirect ways that their associates lie, or that there is a preexisting understanding that the associate should lie. Those cases can be very challenging to prove beyond a reasonable doubt.

Barbara McQuade (@BarbMcQuade), Professor at the University of Michigan Law School. She served as United States Attorney for the Eastern District of Michigan and Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee from 2010-2017:

While the second scenario might make it more difficult to prove a direct crime, such as suborning perjury, President Trump could be guilty of aiding and abetting or conspiracy to obstruct justice in violation of 18 USC 1512(b) or (c) under either scenario. (And, of course, if we are considering impeachment rather than indictment, we need not worry about the technical elements of crimes.) The difference would be a matter of proof.

Under the law, a conspiracy is an agreement, which may be explicit or implicit. Evidence may be direct or circumstantial, and the law does not say that one is better than the other. If evidence shows that Trump explicitly directed Cohen to lie to Congress, then that is an easy case to prove. If, on the other hand, evidence shows that Trump implicitly encouraged Cohen to lie, that conduct can still legally amount to obstruction of justice. It is just more difficult to prove. Under either scenario, prosecutors would have to show that Trump had the requisite intent to act “corruptly” to impede the investigation by Congress. Instead of using direct evidence, prosecutors would need to use circumstantial evidence, such as evidence of circulating statements in advance without objection.

Mimi Rocah (@Mimirocah1), Distinguished Fellow in Criminal Justice at Pace Law School and a legal analyst for MSNBC and NBC News. She served as an Assistant United States Attorney in the Southern District of New York:

There is a significant difference, from a purely legal standpoint, between the conduct described in scenario A versus scenario B. In A, if Trump directed Cohen to lie to Congress about something material to the investigation (and assuming the proof on that direction was strong), he would be guilty most clearly of lying to Congress, under 18 U.S.C. Sec. 1001, because directing someone to commit a crime in that manner is the same as actually committing the crime yourself (under the aiding and abetting statute, 18 U.S.C. Sec. 2). In addition, if Cohen was under oath when he made these false statements, Trump could be potentially guilty of suborning perjury (under 18 U.S.C. Sec. 1622). Finally, with a directive this clear, I think Trump could potentially be guilty of witness tampering and conspiracy to commit obstruction under 18 U.S.C. 1512(b) & (c)). For these crimes “corrupt intent” would have to be demonstrated — i.e., that the lie was to prevent the investigation from uncovering something as opposed to some other motive like embarrassment. I think given the record as a whole that could be shown here. As to the facts in B, I think it’s less clear. The crimes a prosecutor would consider charging wouldn’t really change, but the question is whether those facts would be enough to show the necessary intent on Trump’s part to make the lies happen. The answer here is really going to be in the details that we don’t have yet. What does “approval” or “encouragement” mean? How explicit was it? What exactly did he say? Was it directly communicated from Trump to Cohen or through a third party? What did Trump say to the third party if one was involved? These are all questions a prosecutor would need to ask (and more). I think given the relationship between Cohen and Trump — i.e., Cohen couldn’t go ahead with the lies without Trump’s approval or assent, it increases the argument that it should be chargeable as a crime against Trump as well. In fact, I was involved in several cases as a prosecutor where we charged a Mafia boss for conduct under that theory.

David Alan Sklansky (@d_a_sklansky‏), Professor at Stanford Law School and a faculty co-director of the Stanford Criminal Justice Center. He served as an Assistant United States Attorney in Los Angeles:

Legally there’s not much difference between directing someone to lie to Congress under oath and encouraging someone to lie to Congress under oath. As long as the lie concerns something material, the first is suborning perjury, and the second is aiding and abetting perjury. They’re both felonies. Acquiescing doesn’t necessarily constitute aiding and abetting; there has to be some actual encouragement. But the encouragement can be quite minimal. Approving someone’s plan to lie under oath about a material fact can be and usually will be aiding and abetting perjury, as long as the approval is communicated in advance to the witness.

Joyce White Vance (@JoyceWhiteVance), Distinguished Professor of the Practice of Law at The University of Alabama and MSNBC commentator. She served as the U.S. Attorney for the Northern District of Alabama:

Michael Cohen has been charged with and pleaded guilty to making a material, false statement to the Congress. The lie concerns how far into 2016 Trump continued to deal with Russians on a potential Trump Moscow project. Of course, conducting international business dealing isn’t a crime. Nor is it a crime for a Presidential candidate to lie, over and over, as it is now clear Trump did, to the public, while not under oath.

So the first question here is, why the lie? Is it merely that Trump was a detached business owner, focused on his presidential campaign, who after signing a non-binding letter of intent on the deal permitted his fixer-lawyer to move it forward and let it slip off his own radar? Sometimes people are forgetful, although that’s a tough sell for a man reputed to hold the reins of his business very tightly.

So, why lie about it? Maybe for the sake of appearances, but that alone doesn’t seem like enough to risk a felony conviction. We can’t know the reason for the lie for certain. It’s possible to speculate—we have heard President Putin was supposed to get a posh apartment in the building, which sounds like the type of bribe US law prohibits payment of to further a foreign business deal. Some have speculated Trump would receive favorable treatment for his project — a quo for the quid of help Russia expected to receive from him after he became President. The bottom line is we don’t know exactly why the lie was told, why the extra months during which the Trump Organization continued to transact its deal with Russia was a matter of such sensitivity. But we do know the President saw it as important because knowing Cohen intended to lie to Congress, he did not stop him.

That’s the threshold conduct we have here — Trump knew (there are reports Cohen’s testimony was public before he gave it), but didn’t prevent Cohen from lying to Congress. And even if the president can claim he didn’t know in advance, Cohen’s testimony was widely reported and if the president found it to be untrue and objectionable, he could have taken steps to share a corrected version.

That he didn’t, might technically make him liable for the crime of misprision, 18 USC 4, concealing the commission of a felony. If misprision is on the minor end of the conduct spectrum, on the other end would be conduct the Special Counsel seems to have told us did not occur, commanding the felony, suborning perjury. If there was evidence that the president directed Cohen to lie, that would indeed be a smoking gun.

But where we are, is, rather, someplace in the middle, with the precise facts only known to parties and prosecutors. However Rudy Giuliani, who has often played the role for the president of outing and normalizing the worst facts ahead of the new cycle, indicated on the Sunday morning TV shows that the President and Cohen likely discussed the latter’s testimony and that negotiations over the Moscow deal went on through November 2016.

If the facts turn out to be that Trump and Cohen had such a conversation in advance of the testimony, then the president’s potential liability will turn on the details of their interaction. It is entirely possible that there was conduct short of a direct order that brought the two into an agreement, a conspiracy, about the lie Cohen would tell to Congress. Or, if Trump encouraged Cohen, that could make him an accomplice, alleviating any worries Cohen might have had that his lie would be uncovered.

Most of the public reporting and pleadings that have been filed in the case, tell us that Cohen discussed his testimony, before he gave it, with people in the White House. What it does not tell us is whether that included the president or whether perhaps those Cohen had conversations with shared those conversations with the president. We do not know if Cohen received any words of assurance that he was on the right course that were attributed to the president. It is perhaps, even possible, that staff in the White House shielded the president from knowledge of these conversations.

Giuliani, as he has so often done in advance of the release of stories damaging to the president, seems to have ruled out that last possibility, noting this morning that the president and Cohen likely discussed the testimony. And if that conversation in fact happened, it defies common sense to believe it could have transpired in a way that does not expose the president to some type of criminal involvement in the lies Cohen told.

Conspiracies don’t always include a clear agreement and a handshake. Far more often, they are a matter of nuanced conversations, gestures and continued action toward a desired outcome. The proverbial nudge, nudge, wink, wink. So the absence of a direct order is in no way fatal to Trump’s involvement, in a criminal fashion, in Cohen’s lie. But the real question is still why—why would a president do this?

None of what we know so far answers the “why” question. Why did Trump lie on the campaign trail? Why did Cohen lie to Congress? It’s possible that once we know the answer to that fundamental question, whether or not Trump was involved in Cohen’s lies to Congress will have far less significance as we consider other, even more serious, matters.

Prosecutors often find themselves at this point in a case; they know what happened but they don’t know why. Prosecutors aren’t required to establish motive in order to get a conviction, but motive can be very helpful in explaining why people made the choices they did. That’s what the public is really struggling to understand here, did the president make bad choices or is there something far more nefarious here?

Alex Whiting (@alexgwhiting), Professor at Harvard Law School and member of the board of editors of Just Security. He served as a former federal prosecutor at the Department of Justice and the U.S. Attorney’s Office in Boston:

Legally, there is no difference whatsoever between Trump explicitly directing Cohen to lie to Congress and Trump intentionally encouraging him to do so through implicit signals or tacit approval. In both cases, Trump would be guilty of aiding and abetting Cohen’s false statements to Congress. Pursuant to 18 U.S.C § 2, a person who “aids, abets, counsels, commands, induces or procures” the commission of a crime is punishable as a principal. A case based on encouragement through silence or tacit signals would have to show that Trump intended to encourage and knew that his silence or his signals would do so. Also, silence alone would be insufficient to incur liability; it would have to be proven that under the circumstances, silence was understood by both Trump and Cohen to mean approval, e.g. if the two had an established practice by which Trump would intervene only if he objected to Cohen’s proposed statements or actions.

If there is no legal difference between these two scenarios, then why was the Buzzfeed report that Trump expressly directed to Cohen to lie received as such a bombshell when there has long existed evidence that Trump encouraged Cohen to lie through implicit signals or tacit approval?

The difference is less about substantive criminal law and more about evidence. If it were established that Trump explicitly directed Cohen to lie, then the case against the Trump for suborning false statements to Congress would be essentially open and shut. Crimes are typically analyzed in terms of acts (actus reus) and intent (mens rea). In the case of a direct statement from Trump to Cohen instructing him to lie, both the act and the intent would be established by proof of the statement itself. The statement is the act of counseling or commanding the lie, and the intent of its author in making the statement is perfectly clear from the statement itself.

By contrast, proving the act and intent of encouraging Cohen to lie through implicit signals or tacit approval is more complicated, and relies on circumstantial evidence to prove that Trump either intentionally, but tacitly, signaled to Cohen to lie, or that he knew that Cohen was going to lie and knew that by remaining silent he would encourage Cohen to do so. Note here that it is not enough to prove that Cohen thought he was following Trump’s wishes, though Cohen’s understanding of Trump’s signals (through statements or silence) would be highly relevant to the question of what Trump intended. However, it remains the case that at the end of the day, the proof would have to establish what Trump intended to do through his signals or silence.

So, what is the evidence that Trump indirectly encouraged Cohen to lie? The evidence is significant and is comprised of two parts: that Trump signaled the false party line through his statements, and that Trump knew of Cohen’s false statements in advance and did nothing to stop him.

In his sentencing memo, Cohen says that he “followed daily the political messages” that Trump “repeatedly and forcefully broadcast.” Accordingly, Cohen “was (a) fully aware of Client-1’s repeated disavowals of commercial and political ties between himself and Russia, as well as the strongly voiced mantra of Client-1 that investigations of such ties were politically motivated and without evidentiary support, and (b) specifically knew, consistent with Client-1’s aim to dismiss and minimize the merit of the SCO investigation, that Client-1 and his public spokespersons were seeking to portray contact with Russian representatives in any form by Client-1, the Campaign or the Trump Organization as having effectively terminated before the Iowa caucuses of February 1, 2016.” Client-1 is Donald Trump. Further, this memo says that Cohen’s conduct with respect to his lies to Congress “was intended to benefit Client-1, in accordance with Client-1’s directives.” In other words, Trump communicated the false party line through his Tweets and statements, and Cohen got the message.

Further, the evidence shows that Cohen specifically worked with White House staff on his testimony to Congress and that he made his prepared remarks public before testifying. In his memo, Cohen says that while his lawyer prepared his testimony, Cohen “remained in close and regular contact with White House-based staff and legal counsel to Client-1.” The Special Counsel confirmed in his sentencing memo that “Cohen described the circumstances of preparing and circulating his response to the congressional inquiries.” When Cohen released his testimony before providing it, there was no pushback from the White House or Trump. Lanny Davis, who represented Cohen on the criminal charges, said that “Mr. Cohen published the testimony before he gave it and that he consulted with White House officials before he gave it so that they knew that the testimony was going to be what Michael Cohen knew to be false testimony about the Moscow tower.”

How compelling is this evidence? It may depend by which standard of proof we assess it. Common sense will lead many to conclude that of course Trump knew Cohen was going to lie and didn’t stop him because he wanted him to do so. This perspective would likely be bolstered by Trump’s long history of lying and his other obstructive acts toward the investigation.

But does the evidence amount to proof beyond a reasonable doubt? That determination will depend on all of the other available evidence. How involved was Trump in reviewing Cohen’s testimony? What was Cohen’s relationship with Trump? Did Trump keep a close tab on Cohen’s work and intervene if he wanted Cohen to change course? The answers to these questions, and others, will be important to assess if the evidence taken together establishes an intent by Trump to encourage Cohen to lie through implicit signals or tacit approval, or if an innocent explanation remains possible. Could it be that Trump was unaware of Cohen’s testimony? Or that Cohen decided on his own to lie, perhaps to curry favor with the President? While some might roll their eyes at such suggestions, if not disproven these possibilities could foreclose a determination beyond a reasonable doubt of Trump’s culpability based on the known evidence.

Two conclusions arise from this analysis. First, it should be clear that although Mueller’s spokesperson shot down the Buzzfeed story about Trump directly instructing Cohen to lie, the evidence might yet add up to an equivalent smoking gun. Second, in evaluating Trump’s conduct, either in the context of impeachment proceedings or at the polls, the standard will not be the criminal one of beyond a reasonable doubt. Instead, members of Congress or the American people will simply ask themselves, what do I really think happened here? Given the accumulating evidence, the answer to that question could suggest peril for Trump.

Andy Wright (@AndyMcCanse), Senior Fellow and Founding Editor of Just Security. He served as Associate Counsel to President Barack Obama in the White House Counsel’s Office. Previously, after six years in private practice as a litigator and white collar criminal defense attorney:

The difference between Scenario A and Scenario B is a pretty classic criminal law exam question designed to explore the distinction between conspiracy and accomplice liability.

Directing someone to do something illegal, in the absence of extortion, suggests a criminal agreement to support a conspiracy charge under 18 USC § 371. The act of “direction” is the overt act in the furtherance of the conspiracy. It also could support liability for aiding and abetting the criminal lies to Congress under 18 USC § 2, which would make the principal (President Trump) liable for the acts of his criminal agent (Cohen).

Scenario B represents accomplice liability without the same level of evidence of conspiracy. The key word in the Scenario B hypo is “encouragement” because mere knowledge or passive approval of wrongdoing without a supportive act does not give rise to criminal liability absent an affirmative legal duty to act. (President Trump clearly has a moral and public spirited duty to ensure fidelity in information given to Congress, but I would defer to others as to whether Trump had, as a client and employer, an affirmative legal duty that would give rise to omission liability.) But there is a long line of cases that allow felony convictions based on encouragement as the act of aid in the crime.

Encouragement could also be used as evidence of a criminal conspiracy, but it a clearer case of accomplice aiding and abetting.

Photo credit: Michael Cohen, former personal attorney to President Donald Trump, exits federal court, November 29, 2018 in New York City after pleading guilty to making false statements to Congress about a Moscow real estate project Trump pursued during the 2016 presidential campaign. (Photo by Drew Angerer/Getty Images)

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).