Decisions, Decisions: What Are the Potential Criminal Violations If President Trump Encouraged Michael Cohen to Lie to Congress?

Three Closed Doors in the RoomOn January 17, 2019, BuzzFeed 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 federal law enforcement officials involved in an investigation of the matter.”

This report is based on anonymous sources. Then, on January 19, the Special Counsel’s Office issued a statement that (kind of) denied it:

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.

So far, BuzzFeed is standing by its story. It urged “the Special Counsel to make clear what he’s disputing.”

Admittedly, the Special Counsel’s statement was not very specific. Perhaps Mr. Cohen’s February 7 congressional testimony will shed some light on these allegations.

Just for fun, though, let’s assume it happened. Let’s assume that President Trump directed his lawyer to lie to Congress about a matter being investigated by the FBI and now the Special Counsel’s Office.

What would be so wrong with that?

A lot of things. I’ve come up with five possibilities so far.

Subornation of Perjury

Merriam-Webster defines “suborn” to mean “ to induce secretly to do an unlawful thing” or “to induce to commit perjury.”

There’s a federal statute that prohibits subornation of perjury—18 U.S.C. § 1622:

Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.

The Justice Manual (née U.S. Attorney’s Manual) gives a helpful overview of what must be proven under this statute:

To establish a case of subornation of perjury, a prosecutor must demonstrate that perjury was committed; that the defendant procured the perjury corruptly, knowing, believing or having reason to believe it to be false testimony; and that the defendant knew, believed or had reason to believe that the perjurer had knowledge of the falsity of his or her testimony.

Mr. Cohen has already admitted that he knowingly lied to Congress in his plea deal in November. If President Trump indeed directed Mr. Cohen to lie, then that’s a potential violation of this statute.

Obstruction of Justice

If the intent of directing Mr. Cohen to lie was to impede Congress’s investigation into his Russia dealings, then President Trump also may have obstructed justice.

Section 1505 of Title 18 prohibits this conduct:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—[s]hall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

Congress was conducting an investigation into President Trump’s dealings in Russia. So, if he directed Cohen to lie to prevent Congress from finding out about those dealings—or, more generally, to obstruct Congress’s investigation—then that’s a possible crime.

It’s worth nothing that 18 U.S.C. § 1512 (Tampering with a Witness) is a similar statute that provides for a 20-year max sentence if there was a threat of physical force involved.

Witness Intimidation

Section 1512 of Title 18 deals with witness intimidation. Witness intimidation can occur when someone uses threats of physical harm or simply by “corruptly persuading” someone with the intent “influence” someone else’s testimony. It’s not just the Tony Soprano-type of behavior.

(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to—(A) influence, delay, or prevent the testimony of any person in an official proceeding.

This can result in a 20-year max sentence. It also prohibits someone from

knowingly us[ing] intimidation, threatens, or corruptly persuad[ing] another person, or attempt[ing] to do so, or engag[ing] in misleading conduct toward another person, with intent to—(1) influence, delay, or prevent the testimony of any person in an official proceeding.

Given stories about President Trump’s business practices, it doesn’t seem like much of a stretch to think that he may have threatened Cohen in some way (even if not a threat of physical harm).

Conspiracy to Intimidate a Federal Witness

If President Trump threatened or intimidated Mr. Cohen into lying to Congress, he could be charged under 18 U.S.C. § 241, which prohibits injuring or intimidating someone from exercising his federal right. That includes testifying in federal court, though it’s not 100% clear to me that it would cover testifying before Congress.

The statute says:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same . . . [t]hey shall be fined under this title or imprisoned not more than ten years, or both.

This one seems like a stretch. First, there would have to be someone other than President Trump involved. Second, testifying before Congress is not generally considered a “right or privilege” (but rather than obligation).

Misprision o a Felony

This is every white-collar defense lawyer’s favorite statute because has a three-year maximum sentence, rather than most statutes, which have a five or even ten-year max. I’ve written about this funny little statute in more detail here.

Section 4 of Title 18 provides:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

This statute would make it a crime not to report a felony. If President Trump knew Cohen lied (and he would know under our hypo because he directed the lie), and did something to conceal the lie, and did not report it, then he could be liable under the statute.

Will Any of These Be in the Special Counsel’s Report?

I read the Special Counsel’s statement with a suspicious eye. Given that the office has been very stingy with public comments (appropriately stingy, standing in sharp contrast to Jim Comey’s inappropriate statements in 2016), it is extraordinary for it to comment on this particular story.

That suggests to me that some fact in the story is wrong—perhaps even dead wrong. Noticeably, the Special Counsel did not say that President Trump didn’t direct Cohen to lie or give any indication about what exactly was wrong in the story.

Commenting on this one story as inaccurate sets an odd precedent. Will the SCO comment on every story that has an incorrect fact in it? Can we assume that previous stories are correct because the SCO didn’t comment on them?

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