BuzzFeed set off a cascading series of controversies last week when it reported that President Donald Trump had “directed” his longtime personal attorney Michael Cohen to lie to Congress about a Trump Tower deal in Moscow that was being negotiated during the 2016 election. The immediate takeaway was that, if the report were true, then Trump had committed a straightforwardly impeachable offense. The allegation was “so cut-and-dried that even Republicans would be hard-pressed not to consider impeachment,” wrote Aaron Blake in The Washington Post. Democrats in Congress raised the alarm. “If the President directed Cohen to lie to Congress, that is obstruction of justice. Period. Full stop,” Rhode Island’s David Cicilline, a member of the House Judiciary Committee, tweeted.
But then, as happens so often in this presidency, the story quickly became clouded by uncertainty and accusations of media bias. The office of the special counsel issued its first public response to a specific story since Robert Mueller began investigating Russia’s involvement in the election. “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,” the statement read. You could practically hear the sighs of relief in the Oval Office. Trump even went so far as to express gratitude to Mueller, his most implacable enemy: “I appreciate the special counsel coming out with a statement last night,” he said. “I think it was very appropriate that they did so, I very much appreciate that.”
But there’s no reason to doubt that Trump has, in fact, repeatedly instructed subordinates to tell lies to Congress and law enforcement authorities, including lies that amount to crimes. The difference is that the media outlets that reported those other cases didn’t say, explicitly, that the president “directed” his aides to lie. Another important difference is the way in which Trump gets his subordinates to lie, which has served to delay the moment when we all admit that he is quite clearly suborning perjury.
BuzzFeed, which sourced its claims to “two federal law enforcement officials involved in an investigation of the matter,” claimed that this was “the first known example of Trump explicitly telling a subordinate to lie directly about his own dealings with Russia.”
In September 2017, The New York Times revealed that over a weekend at Bedminster Golf Club with Trump, White House aide Stephen Miller drafted a memo explaining why the president was firing former FBI Director James Comey—the event that immediately precipitated the launch of the special counsel’s investigation. The letter cited comments Comey had made about the FBI’s investigation into Russia’s interference in the 2016 election. White House counsel Don McGahn later massaged those references in Comey’s actual termination letter, to suggest that Comey was being fired for a different reason (though Trump would admit that the Russia investigation was the actual cause days later on television). Given that McGahn’s letter was sent to the FBI director, it amounted to a lie to the bureau.
Then last June, the Times published a January 2018 letter in which Trump’s lawyers admitted to Mueller’s office that “the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.” The letter tied that statement directly to Don Jr.’s testimony to Congress about the infamous Trump Tower meeting in 2016, in which Don Jr. sought to procure damaging information about Hillary Clinton from Russian agents. “His son then followed up by making a full public disclosure regarding the meeting, including his public testimony that there was nothing to the meeting and certainly no evidence of collusion.” Trump’s statement to the Times claimed there had been “no follow-up” after the June 9 meeting, and Don Jr.’s testimony to Congress sustained that claim. But the public record shows there was follow-up after the election.
Both of these instances (and other less clear-cut examples) show how Trump has gotten aides to provide false statements to investigating authorities and Congress. It’s just that the Times didn’t state what was clear: The president’s subordinates and son lied to authorities, including Congress and the FBI, with his tacit knowledge and even scripting.
BuzzFeed, however, was not so squeamish about identifying what—it continues to insist—its evidence showed.
The response was explosive. Democrats like Representative Ted Lieu of California suggested impeachment proceedings could arise from Trump’s apparent obstruction of justice. Even House Judiciary Chair Jerry Nadler, who has cautioned against a rush to impeachment, asserted, “We know that the President has engaged in a long pattern of obstruction,” before promising, “The @HouseJudiciary Committee’s job is to get to the bottom of it, and we will do that work.” (The House Judiciary Committee would oversee any impeachment inquiry.)
The alarm wasn’t limited to Democrats. White House spokesperson Hogan Gidley, after claiming to Fox News that media outlets were “just using innuendo and shady sources,” still did not deny the story. Fox’s Chris Wallace, while warning to take the BuzzFeed story “with a giant grain of salt,” admitted, “It’s the kind of thing that can get you impeached.”
It didn’t help that William Barr, Trump’s nominee to be attorney general, agreed twice in his confirmation hearing last week that if a president encouraged someone to testify falsely it would amount to obstruction of justice. Barr agreed that a president—or any person—who persuades a person to commit perjury or change testimony would be committing obstruction. Barr also concurred when Senator Lindsey Graham asked, “If there was some reason to believe that the president tried to coach somebody not to testify or to testify falsely, that could be obstruction of justice.”
The president’s lawyers were apparently so anxious that, according to multiple news outlets, they “raised concerns” in a letter to Mueller’s office. And according to The Washington Post, the office of Deputy Attorney General Rod Rosenstein called Mueller’s office to find out if he would be releasing a statement.
When the statement from Mueller’s office finally dropped, the discussion of impeachment, which had rapidly grown rampant, was curbed. But what we know so far indicates that Trump, in at least one previously known case involving Don Jr., scripted someone to lie under oath, which means that all the concerns voiced by Democrats and Fox News anchors in response to the BuzzFeed story remain as valid as ever. It’s the kind of thing that can get you impeached.
Furthermore, the special counsel’s statement did not exonerate the president, rare as it might be for his office to rebuke the press. The statement merely distinguished what that office had obtained in its investigation from what BuzzFeed said the office had obtained. That’s significant because, in Cohen’s case, Mueller’s prosecutors are working with another Justice Department office, the Southern District of New York, on parallel prosecutions. Indeed, FBI agents working with SDNY conducted the raid on Michael Cohen’s home in April, gathering information that was then shared with Mueller’s people.
Indeed, there are notable differences in the way the two prosecutions characterize the degree to which Trump—referred to as Individual-1 or Client-1 rather than by name—directed Cohen’s illegal conduct. With respect to hush payments to Stormy Daniels and Karen McDougal, Cohen admitted in the SDNY case that he acted “on Client-1’s instruction, to attempt to prevent [women alleging to be the Candidate’s former sex partners] from disseminating narratives that would adversely affect [his] Campaign.” By contrast, in Mueller’s case, Cohen claimed that, when he lied to Congress about the Trump Tower deal in Moscow, he was “seeking to stay in line with” the message Trump and “White House-based staff and legal counsel to Trump” were pushing regarding Trump’s ties to Russia.
That is, in pleading guilty to SDNY prosecutors, Cohen said Trump “instructed” him to take action. But in pleading guilty to Mueller’s prosecutors, Cohen said he was following the messaging of Trump’s advisers, without claiming to have been instructed to do so. In both cases, however, Cohen said loyalty to Trump led him to commit crimes to sustain Trump’s desired message.
This dynamic may be why it has been so hard for other news outlets to do what BuzzFeed did: to state that Trump induces his aides to lie, not just as a routine matter, but also in ways that break the law. Trump gets those around him to lie in a different manner than past presidents.
Consider how some of George W. Bush’s most disastrous lies worked. With both the claim that Iraq had weapons of mass destruction and that the CIA was just vigorously interrogating detainees rather than torturing them, Bush’s top aides either ensured he retained plausible deniability to the lies or his public claims were technically correct. It was technically true that, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” Left unsaid was that the U.S. government had already judged that Saddam didn’t actually obtain the uranium he sought.
With Bush’s lies, the buck often stopped with Vice President Dick Cheney. And Cheney exploited his bureaucratic genius, both inside and outside government, to ensure message discipline. One reason Cheney started collecting information on Valerie Plame and her husband Joe Wilson’s trip to Niger, in an effort that would lead to the disclosure of her CIA status, was because CIA analysts close to Plame were leaking details of what the CIA had really known to the press. Similarly, people close to Cheney had a hand in the consistent use of “enhanced interrogation techniques” in the most secret realms of government, in memos rubber-stamping the torture, and on the front page of The New York Times.
There is no such plausible deniability in the Trump administration. Under Trump, the lies are facilitated not through any kind of bureaucratic genius, but instead through an insistence that underlings toe the public line. These lies include more innocuous ones like inauguration attendance, as well as more serious ones involving Trump’s awareness that a Russian linked to military intelligence was brokering a $300 million real estate deal at the same time that Russia’s military intelligence was offering dirt stolen from Trump opponent’s server to his son.
In fact, that’s the theory presented in all three of Mueller’s cases in which a Trump aide lied about matters pertaining directly to Russia’s involvement in the campaign. Under oath, Cohen explained that he lied about the Trump Tower deal “to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1.”
In his sentencing memo, George Papadopoulos said his lies about Russians offering the campaign Hillary Clinton’s emails were not meant to impede the investigation but “to save his professional aspirations and preserve a perhaps misguided loyalty to his master.” By his own account, Papadopoulos lied “out of loyalty to the new president and his desire to be part of the administration.”
And in explaining why former National Security Advisor Michael Flynn told lies—which included false statements to the FBI about his communications with the Russian ambassador to the U.S.—the government said, “By the time of the FBI interview,” Flynn “was committed to his false story.” We know that Flynn took those actions, in part, to avoid a “tit-for-tat escalation” that would make it difficult to improve relations with the Russians after they had just “thrown [the] USA election” to Trump, according to Flynn’s deputy K.T. McFarland.
Mueller has hinted that Trump’s other subordinates were involved in just one of these lies: Cohen’s. In a filing describing how Cohen explained “the circumstances of preparing and circulating his response to the congressional inquiries,” Cohen suggested he coordinated with “White House-based staff and legal counsel to Trump.”
That’s what the public record shows happened with Don Jr.’s statements about the Trump Tower meeting, in which he falsely claimed there was no “follow-up.”** Trump dictated that line himself in July of 2017, and his camp has never deviated from it.* Trump Organization lawyers urged Rob Goldstone, who set up the meeting, to endorse the claim. They did this even though they had to have known it wasn’t true. Indeed, less than a week after Trump’s lawyers tried to get Goldstone to back him up, Trump’s assistant forwarded Goldstone an email he sent her the prior year, showing it to be false.
So where do all the lies come from? The record indicates that Trump decides what lie is going to be told, and the people around him, indirectly or otherwise, do what they need to sustain it, even if it includes lying to Congress, the FBI, and Mueller’s team.
Legally, the difference between ordering someone to lie and simply ensuring they follow your message out of abject loyalty may not save Trump. There is one law, subornation of perjury, that imposes up to five years in prison if a person “procures another to commit any perjury.” Even aside from whether Trump personally directed his aides to tell lies, the crime Trump’s aides, including Cohen, have been prosecuted for thus far has been false statements, not perjury. A more basic law makes it a crime to “aid, abet, counsel, command, induce, or procure” an offense against the United States, in which case that person can be charged “as a principal.” In past presidential cover-ups, conspiracy to obstruct justice was charged. So Trump could be on the hook for the lies he encouraged his subordinates to tell, too, sometimes with the help of his lawyers.
In this administration, the president doesn’t need to order his subordinates to lie for him. It’s a daily matter of course. Mueller’s team seems to be wise to that, even if Congress and much of the media aren’t quite there yet.
*A previous version of this article incorrectly stated that Donald Trump asserted to his team in 2016 that there was no follow-up to the Trump Tower meeting. He made the assertion in 2017. We regret the error.
**A previous version of this article incorrectly attributed a statement claiming there was no follow-up. The statement was made by Donald Trump Jr., not Michael Cohen.