Impeachment and the Cohen Allegations

Things are moving ahead at a rapid pace, and I am therefore going to interrupt my discussion of impeachment and indictment to discuss some breaking news. As you may have heard, it is being reported that “President Donald Trump directed his longtime attorney Michael Cohen to lie to Congress about negotiations to build a Trump Tower in Moscow, according to two law enforcement officials involved in an investigation of the matter.”

Because the House Permanent Select Committee on Intelligence (HPSCI) issued its Russia report in the spring of last year, we have a pretty good idea of what Cohen told the committee and how his testimony may have influenced its conclusions. First, let’s review the relevant sections of the report, as summarized in an earlier blog post:

[T]he report discusses the business relationship between Trump and Russia. For example, while Trump was in Moscow in 2013 for the Miss Universe pageant (which he owned at the time), he discussed with his business partners, the Agalarovs, the possibility of constructing a Trump Tower Moscow. Subsequently, during the presidential campaign, Trump’s personal lawyer, Michael Cohen, worked on a potential Trump Tower Moscow deal with Felix Sater, a colorful and shady Russian-American businessman who had pleaded guilty in the 1990s to participation in a stock fraud scheme allegedly orchestrated by the Russian mafia.

In late 2015 and early 2016, Cohen and Sater had a number of communications related to the Trump Tower Moscow project. Many of these conversations involved the need to get Russian government backing for the project, including “an attempt to broker a meeting or other ties between candidate Trump and President Putin.” Sater claimed, perhaps falsely or with exaggeration, to have connections to Putin and other Russian government officials who would support the project. He also suggested that cementing a business deal between Putin and Trump would benefit the latter politically. In a November 3, 2015 email to Cohen, Sater wrote: “Buddy our boy can become President of the USA and we can engineer it. . . . [If] Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . . . Donald owns the republican nomination.”

Much or all of this may have been grandiose puffery on Sater’s part, but Cohen was not merely pretending to represent Trump and the Trump Organization. Whether his clients were specifically aware of his communications with Sater, there does not seem to be any doubt they approved his efforts to move the Trump Tower Moscow forward in the midst of the presidential campaign or that they understood this would require the approval and support of the Russian government.

The Trump Tower evidence laid out by the committee would seem to establish, at the very least, (1) a conflict of interest that might reasonably be thought to explain Trump’s pro-Russia views and (2) corroboration of other evidence discussed in the report suggesting that Trump and/or his associates expected and welcomed Russian assistance in the campaign.

Since the issuance of the HPSCI report, additional facts have come to light regarding this project. For example, Cohen admitted that he lied to Congress when he claimed that the discussions regarding Trump Tower Moscow ended in January 2016; it appears that they continued until June of that year. It also transpired that Trump himself signed a letter of intent for the project in October 2015.

Note that even if everything Cohen had told HPSCI was the truth, the whole truth and nothing but the truth, his testimony should have been extremely troubling, to say the least. A candidate (1) with unusually pro-Russian policy positions, a campaign manager with a history of corrupt Russian dealings, and a number of campaign advisors with questionable Russian connections; (2) whose campaign engaged in inappropriate and ill-advised contacts with Russia, such as the June 2016 meeting in Trump Tower New York (which HPSCI said evinced “poor judgment”); (3) whose praise for and campaign’s communications with Wikileaks, a hostile foreign intelligence service linked to Russia, HPSCI found “to be highly objectionable and inconsistent with U.S. national security interests”; and (4) who encouraged and benefitted from election interference by Russia and Wikileaks, also had business dealings with Russia during the campaign (i.e. for at least seven months after Trump announced his candidacy), in which the approval of high-ranking Russian officials would have bestowed a major financial benefit on the candidate.

Standing alone, these facts strongly suggest that Trump’s Russia policies may have been influenced by his financial interests and that Russia had a motive to help Trump win the election because it believed these financial interests would cause him to favor Russia. Trump’s “defense” of this conduct was as follows: “There was a good chance I wouldn’t have won, in which case I would have gotten back into the business, and why should I lose lots of opportunities?” This is hardly reassuring, particularly given that Trump still owns a large business organization which, as far as we know, continues to look for opportunities in Russia and other hostile foreign countries.

Be that as it may, the HPSCI report states: “The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.” The committee made this determination based on evidence which included Cohen’s false statement that the Trump Tower Moscow project petered out in January 2016, around the time the first Republican primaries began.

In fact, according to Cohen’s subsequent guilty plea, the negotiations went on until approximately June 2016, during which time Cohen had undisclosed communications with Russian officials as well as Trump and members of the Trump family regarding the project. In addition, during this period Cohen agreed to travel to Russia in connection with the project and also took steps to arrange a trip to Russia for Trump himself. Although it is not clear exactly how seriously the latter was considered, Cohen apparently discussed the idea with Trump and others, and contemplated the possibility of Trump traveling to Russia either immediately before or after accepting the Republican nomination. The possibility of Trump meeting with Russian President Putin during this trip was also discussed.

Interestingly, Cohen pleaded guilty to making a false statement only to the Senate Select Committee on Intelligence (SSCI), perhaps because HPSCI would not provide the evidence needed to establish that his misrepresentation was “material” to its investigation. Nevertheless, it seems likely that a disinterested factfinder would find that his misrepresentation was material to both the HPSCI and SSCI investigations because materiality requires merely that the false statement have a “natural tendency to influence, or be capable of influencing, the decisionmaking body to which it is addressed,” not that it actually influenced the decisionmaker.

For purposes of discussion, I assume that if Trump directed Cohen to make these false statements to HPSCI and SSCI, he is guilty of obstruction of Congress. Whether or not the special counsel has the evidence to prove this crime beyond a reasonable doubt, however, it remains the position of the Department of Justice that a sitting president cannot be indicted. Indeed, as recently as a few days ago, Bill Barr, the nominee for attorney general (and someone I know well and think highly of), told the Senate Judiciary Committee he sees no reason to revisit the Justice Department’s longstanding position on this issue.

Thus, as I suggested in my last post (and will continue to discuss), impeachment, not indictment, is the only practical option for addressing presidential misconduct at the present time. If congressional Democrats are demanding an investigation of the latest revelations (as well they should), they have only themselves to petition for redress of grievances.

It is true that the House (or Senate, for that matter) can investigate this issue without instituting a formal impeachment inquiry. However, instituting such an inquiry sooner rather than later provides at least one advantage. Ordinarily it is extremely difficult for Congress to get evidence from an ongoing criminal investigation (it isn’t that easy to get it from a closed investigation for that matter, as discussed here pages 14-18). But since the president is subject only to impeachment, not indictment, the rationale for allowing an impeachment inquiry immediate access to this information is much stronger.

As former acting solicitor general Neal Katyal writes, “[t]o say that a prosecutor cannot indict a sitting president is, by definition, to say that the prosecutor’s evidence must be given to Congress so it may decide whether the president should remain in office.” While I don’t agree with everything Katyal says in this piece, I totally agree with that. And almost as importantly, so does Brett Kavanaugh. See Brett Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2161 (1998) (“When nonfrivolous allegations or evidence of wrongdoing by the President is received by a prosecutor, that evidence should be forwarded to the House of Representatives.”)

 

 

 

 

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