Friday, 18 January 2019

It was always about Russia and money


It was always about Russia and money

On the evening of Thursday 17 January, BuzzFeed News dropped the following bombshell: “President Trump Directed His Attorney To Lie To Congress About The Moscow Tower Project”.  The story, assuming the reporting by Jason Leopold and Anthony Cormier is corroborated by others and turns out to be true, explains the details of the Trump-Russia connection during his campaign and presidency, and why the acts that flow from that connection are serious crimes.  The following is a lightly edited and glossed discussion of the importance of this story, taken straight from Lawfare.

This story is a big deal because of what it says about the president’s conduct in office. It’s a big deal because of what it says about the reality of Trump’s relationship with Russia during his campaign. And it’s a big deal because the story appears to be based on a serious law enforcement leak.


According BuzzFeed News, President Trump directed his personal lawyer, Michael Cohen, to lie to congressional intelligence committees regarding efforts during the Trump campaign to develop a Trump Tower in Moscow. These appear to be the same lies that were at the heart of Cohen’s November 2018 guilty plea (which the Lawfare team analyzed in this post and on this podcast), in which Cohen admitted to submitting a letter containing false statements to the House and Senate intelligence committees and to giving false testimony to the Senate panel about various facts related to the Trump Tower Moscow project.

Cohen admitted he lied to Congress by saying the Trump Organization had scrapped the project in January 2016, even though negotiations continued at least into the summer. He admitted that he lied to Congress when he said that he never planned to travel to Russia for the Moscow Project nor planned to ask Trump to travel there. And he admitted that he lied when he said he did “not recall” receiving any response after he reached out to Kremlin Press Secretary Dmitry Peskov about moving the deal forward—when in fact, he had spoken with the press secretary’s office on the matter. He said in court as he entered his guilty plea that he lied “to be consistent with [Trump’s] political messaging and to be loyal” to Trump.

If Thursday night’s reporting is true – still a big ‘if’ – Cohen also lied at the specific direction of Donald Trump—a point that his earlier admissions and Mueller’s public filings left a studied ambiguity.

According to the story, Trump not only directed Cohen to lie to Congress, but he was also kept apprised of Cohen’s efforts to interact with the Russian government during the campaign—despite his repeated public statements that he had “nothing to do with Russia.” Leopold and Cormier report that Trump himself “vehemently” pushed for the Moscow deal and that Trump and Cohen met at least 10 times during the campaign to discuss the deal. Furthermore, regarding Cohen’s plan to have Trump personally meet with Russian President Vladimir Putin to bolster negotiations, Trump’s commanded that Cohen “make it happen.” This is, notably, also in contrast to the president’s statements late last year, in which he insisted that he only “very lightly looked at doing a building somewhere in Russia” during the campaign, activity he memorably deemed “very legal and very cool.”

Cormier and Leopold report that Cohen acknowledged the order to lie to Congress from the president in interviews with the special counsel’s office after entering a plea agreement. But, the story reports, Mueller’s team had by the time of that interview “learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.” The reporting also says that lawyers close to the administration helped prepare Cohen for his testimony and assisted with drafting his statement to the Senate intelligence committee, though they did not say those lawyers knew that Cohen’s statements were false. Former White House counsel Don McGahn, through his attorney, denied any knowledge or involvement in those activities on his own behalf and said he was unaware of anyone in the counsel’s office taking part in it.

The story also describes awareness of and involvement in the matter by Ivanka Trump and Donald Trump, Jr. Leopold and Cormier report that Cohen gave the president’s children “very detailed updates.” In response to previous reporting by Cormier and Leopold that Ivanka Trump was in contact with a Russian athlete about the Moscow project, a spokesman for her lawyer told Buzzfeed News that the president’s daughter was only “minimally involved” in the planning. For Trump Jr.’s part, on Sept. 7, 2017 the president’s son testified before the Senate Judiciary Committee that he was only “peripherally aware” of the Moscow plan and said that most of what he knew about the project, he had learned in the weeks leading up to that testimony. Cormier and Leopold’s sources suggest, by contrast, that Trump Jr. and Cohen had “multiple, detailed conversations on this subject during the campaign.”

The story’s importance is threefold:

First, the criminality alleged in this story is—if true—unsubtle and unambiguous, directly related to the president’s conduct as president, and concerning matters of great import.

This story is the first direct allegation of a crime by Trump involving Russia for which the president cannot claim that his actions were authorized by the Article II powers of the presidency. There is an active debate about the degree to which the obstruction statutes can or cannot be applied to facially valid exercises of presidential authority—like, for example, firing the FBI director or directing the conduct of an investigation. There is no debate, by contrast, about whether the president can obstruct justice in his conduct outside of his authorities as president.  This was established clearly in the question of Attorney General-nominee Bill Barr during his Senate confirmation hearing. 

Minnesota Sen. Amy Klobuchar asked Barr, “You wrote … that a president persuading a person to commit perjury would be obstruction, is that right?”

Barr replied, “Yes.” He then clarified that “any person” who persuades someone else to commit perjury would be guilty of obstruction.

Klobuchar continued, “you also said that the president or any person convincing a witness to change testimony would be obstruction, is that right?”
“Yes,” the nominee affirmed.

Sen. Lindsey Graham of South Carolina, the committee chairman, later returned to this point, asking, “if there was some reason to believe that the president tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?”

Barr again replied: “Yes.”

“So, if there’s some evidence that the president tried to conceal evidence, that would be obstruction of justice, potentially, right?”

“Right,” Barr agreed.

In this regard, a particularly noteworthy aspect of the story is BuzzFeed News’s claim that, “Attorneys close to the administration helped Cohen prepare his testimony and draft his statement to the Senate panel, the sources said. The sources did not say who the attorneys were or whether they were part of the White House counsel’s staff, and did not present evidence that the lawyers knew the statements would be false.” The combination of the direct presidential instruction to lie and alleged help in preparing the testimony by “attorneys close to the administration” raises important conspiracy questions, as well as the obvious obstruction questions. Presidential authorities do not protect this sort of activity either.

This is not the first time that questions have arisen about the president’s potential liability for obstruction of justice on the basis of activities outside the scope of his Article II authority: As some of the present authors have written, Trump’s tweets praising Paul Manafort for refusing to cooperate with investigators (before Manafort pleaded guilty) and lauding Roger Stone’s unwillingness to “make up lies” to prosecutors could potentially fit within the definition of witness tampering. But while there is a legal argument to be made in those instances, it is far from a slam dunk, and there is a split between circuit courts on a key relevant statutory question. Repeatedly tweeting praise for a witness’s refusal to “break” is egregious conduct, but it may be a loser as a criminal allegation, at least in this context. Directing a witness to lie to Congress, as Barr’s testimony acknowledges, is much more obviously a problem under the statutes as currently understood.

The allegations in the Buzzfeed story are also more obviously serious than are the allegations in other areas in which Cohen has directly implicated President Trump in criminal offenses. Before a judge in an open plea hearing in Manhattan federal district court, Cohen said in August 2018 that Trump had directed him to pay two women during the campaign in exchange for their silence about affairs they alleged with the president. That statement appeared to implicate the president in federal campaign finance violations—an implication that prosecutors in the Southern District of New York affirmed in their sentencing memo in Cohen’s case. But, however serious that matter may be, this is at a different level. If this latest allegation proves to be true, it cannot be dismissed as a mere campaign finance violation. Nor can it be dismissed, in a Clintonesque fashion, as mere lying about sex. The president’s conduct here, if the allegation as to his conduct is true, covered up something independently and objectively important. And the allegation here, moreover, involves something Trump allegedly did after he won the election and took the presidential oath. So the argument that conduct that occurred prior to Nov. 6, 2016, or Jan. 20, 2017, is not relevant or serious in evaluating the president’s fitness for office—which may have some salience with respect to the hush-money payments matter—has no salience here.

Last night, the president’s attorney, Rudy Giuliani, responded to the Buzzfeed News report by saying, “If you believe Cohen I can get you a great deal on the Brooklyn Bridge.” This is consistent with the White House’s approach of attacking Cohen’s credibility in his prior significant accusations against the president. And there is good reason to be suspicious of Cohen, who has, after all, acknowledged lying repeatedly.
This is why it is especially significant that BuzzFeed News is reporting that the special counsel’s office has corroborating evidence. In fact, as noted above, BuzzFeed News reports that Mueller first got evidence of Trump’s directive to Cohen, as noted above, “through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.” It wasn’t until after the special counsel’s office had obtained that information that “Cohen then acknowledged those instructions during his interviews” with investigators.

Second, the story also suggests much deeper involvement by Trump and his family in the Trump Tower Moscow deal than was previously public. The criminal information against Cohen and the sentencing memo Mueller filed in Cohen’s case described the extent to which candidate Trump—who claimed on the campaign trail that he had “ZERO investments in Russia”—was personally involved in what prosecutors describe as the “Moscow Project.”

Mueller wrote that, despite public denials, “Cohen continued to work on the project and discuss it with [Trump] well into the campaign” and that Cohen “conferred with [Trump] about contacting the Russian government before reaching out to gauge Russia’s interest” in a potential meeting between Trump and Russian President Vladimir Putin in the fall of 2015. And the criminal information states that Cohen spoke with Trump about the project on “more than … three” occasions during the campaign. Compare this to Cormier and Leopold’s reporting that the two had “at least 10 face-to-face meetings” on the subject while Trump was running for president.
As noted above, Leopold and Cormier go further, confirming that Cohen had “multiple detailed conversations” with Ivanka Trump and Donald Trump, Jr., on the matter. And where the sentencing memo indicated that Trump had at least some knowledge of a potential plan to meet with Putin in New York in 2015, BuzzFeed News reports that Trump personally directed Cohen to arrange a trip to Moscow during the campaign. This may be the trip referenced in the criminal information, which Cohen planned in connection with Felix Sater for the summer of 2016—well after Trump had clinched the Republican nomination. Before now, however, it was not clear that Trump had any personal involvement in or knowledge of that planning.

Notably, BuzzFeed News writes that Trump “hoped [the Trump Tower Moscow deal] could bring his company profits in excess of $300 million.” This tracks with Mueller’s description of the deal in the Cohen sentencing memo as something that could have potentially raked in “hundreds of millions.”

The importance of this figure, as indicated by Josh Marshall at TPM, is that this single deal would net Trump more profit than all the real-estate deals he had made in the previous two decades.  The Lawfare discussion continues:  

In describing Cohen’s assistance to the investigation, the Mueller memo notes that “Cohen provided relevant and useful information concerning his contacts with persons connected to the White House during the 2017-2018 time period” and that Cohen “described the circumstances of preparing and circulating his response to congressional inquiries”—statements that are consistent with BuzzFeed News’s reporting on the role of “attorneys close to the administration” in helping Cohen prepare for the congressional testimony in which he lied. Of course, the president is also a person “connected to the White House.”

The significance here is not just that the president reportedly directed Cohen to commit a crime in lying to Congress. It’s that Trump allegedly personally directed Cohen to lie in order to cover up the depth of his and two of his children’s roles in a project that involved, at multiple points, would-be coordination with the Russian government.

In other words, this is an alleged lie about alleged collusion.
Finally, third, the leak itself is independently a big deal.  It is clearly sourced to “law enforcement” officials investigating the matter. Indeed, the very first sentence of the story attributes the story “to two federal law enforcement officials involved in an investigation of the matter.” The body of the story contains repeated references to “the two sources,” “the two law enforcement sources,” “the sources,” and “law enforcement sources familiar with [Cohen’s] testimony,” apparently all referring to the same people. It is thus going to give rise to allegations about Mueller leaking, opening up a new front in the confrontation between the special counsel and the president. Cormier and Leopold have a track record of actually being sourced in law enforcement. So it is wise to take them seriously when they tell you this is an actual law enforcement leak.

But “law enforcement” is not quite the same thing as the special counsel’s office. As that guide to sourcing also argued, “If the reporter attributes something to ‘law enforcement sources,’ the sources have to work in law enforcement—though not necessarily in the specific investigation at issue.”

In this story, the attribution is intentionally fuzzy, and the wording, careful. Cormier and Leopold describe their two sources as “federal law enforcement officials” who are “involved in an investigation of the matter” (emphasis added). Note that they don’t say they are involved in the investigation of the matter—that is, the special counsel’s investigation. It is almost as though Cormier and Leopold are flagging that their sources are involved in a different investigation, through which they collaterally have insight into what Cohen is telling Mueller. Note also that Mueller’s point of view is not reflected in the story. In other words, while the wording is certainly consistent with a Mueller leak, it very much leaves open the possibility that the information here is coming from the Southern District of New York or the FBI or some other federal law enforcement component interacting with the special counsel’s office.

Marshall at TPM also makes a strong case that this information is coming from investigators of the Southern District of New York – those working explicitly on the Trump organization. Finally, as the Lawfare discussion indicates:

One key question over the next few days will be whether any other news organization can confirm this story. Cormier and Leopold have been reliable contributors on the Russia investigation, but a story reported by one team is a different animal than a story broken by one team and then confirmed and advanced by other news organizations. One reporter for ABC has noted that their investigations have not yet identified any Trump Organization employees who had spoken to Mueller, despite BuzzFeed News’s claim that this information was partially sourced to such interviews. The story will be easier for the president and for Congress to ignore if BuzzFeed News remains out on its own on a limb for a protracted period of time than it will if the New York Times and the Washington Post and the major news networks independently confirm this reporting. If other news organizations do confirm the story, pay particular attention to how their stories are sourced.

Finally, it will be interesting to see how congressional Republicans react to this story. It is one thing to dismiss or ignore allegations about hush-money payments to women to cover up affairs in violation of campaign finance laws. It’s quite another thing to refuse to engage allegations of directing an attorney to lie to Congress to cover up precisely the sort of interactions with Russia the president has long been denying and on the strength of which denials many Republicans have predicated their continued support for Trump. If the story turns out to be true, will those Republicans now focus on the leaks? Or will they finally turn in a serious way to the merits of the president’s conduct?

One other element worth watching. Trump may well have addressed this matter in his written submission to Mueller. In April, the New York Times reported that Mueller asked Trump to answer two questions: “What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?” and “What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?” Trump has since submitted written answers to at least some of Mueller’s questions. If he, in fact, directed Cohen to lie, as BuzzFeed News reports, did he tell Mueller the truth in this submission?

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