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Opinion | Is Mueller Building an Expansive Obstruction Case?

Category: Diplomatic Relations,Politics

The court filings on Friday in the Michael Cohen and Paul Manafort cases require reading between the lines. Some lines, redacted, are missing altogether. However, what has been made public calls for reconsidering the longstanding assumptions about President Trump’s potential exposure to a charge of obstruction of justice.

That discussion has been dominated by the circumstances around the firing of James Comey, the former F.B.I. director. But Mr. Cohen and Mr. Manafort, along with the former national security adviser Michael Flynn, may now have become central figures in inquiries into whether the president, and perhaps others acting at his guidance, directed, encouraged or acquiesced in lies to criminal and congressional investigators.

In the special counsel’s sentencing memorandum, prosecutors credit Michael Cohen with four “respects” in which his assistance has been “significant.” One involves the details Mr. Cohen provided about the “circumstances of preparing and circulating his response to the Congressional inquiries.” In that testimony, he lied about the president’s business dealings with Russia during the 2016 presidential campaign. We know from Mr. Cohen’s earlier plea agreement that, for his testimony, he was in “close and regular contact” with the White House and the president’s lawyers.

The new memo suggests that there is more to be known about the White House’s — and hence, the president’s — review of that testimony and any potential complicity in the lies that Mr. Cohen subsequently told. Why else would the facts that Mr. Cohen supplied in this respect be “significant”?

Any communications he had with the White House about the testimony would have been important only insofar as there was a discussion of its content. The president would have had a keen interest. It is exceedingly unlikely that he did not know what members of his staff and his lawyers learned about what Mr. Cohen was prepared to say. We also know that Mr. Cohen lied about the Moscow hotel project.

While in his plea agreement Mr. Cohen noted that he understood and sought with his lies to bolster one aspect of the president’s public messaging on Russia — namely, that he had no business dealings with the Putin government — he did not say anything inconsistent with the possibility that the president knew that Mr. Cohen planned to lie to Congress. Did Mr. Trump encourage Mr. Cohen directly, or through others, to lie about the hotel project, to protect his public account? Or did the president, knowing Mr. Cohen would tell a lie, acquiesce in the false testimony — signaling with this silence approval, or at least acceptance?

A similar question is presented in the case of Paul Manafort. The memorandum filed by prosecutors set out Mr. Manafort’s breach of his cooperation agreement. Contrary to his express representations to the government, he was in contact with the White House, with a “senior administration official,” in 2018. The prosecutors make clear that they have evidence of multiple contacts. Who was Mr. Manafort communicating with, and about what? That he was bidding for a pardon is one possibility. Another is that he was making sure that the president knew that he was holding the line — against telling the truth about the matters under investigation.

In the same week we learned that Michael Flynn, unlike Mr. Cohen and Mr. Manafort, was actively cooperating. It’s not yet in the public record, but one issue on which he is certain to have come clean are the circumstances in which he lied to the F.B.I. about discussions in December 2016 with the Russian ambassador. It is known that Sally Yates, then the deputy attorney general, briefed the White House counsel promptly about the problem with Mr. Flynn’s F.B.I. interview, and Mr. Trump’s press secretary later assured reporters that the president was immediately briefed about “the situation.”

Yet weeks passed before the president fired Mr. Flynn, and when he did he did so, he cited lies told to the vice president, not investigators. In other words, Mr. Trump steered clear of holding Mr. Flynn responsible for the criminal offense. Mr. Flynn may have light to shed on the president’s motives for this reticence. Mr. Trump might have avoided addressing publicly the lie to the F.B.I. if he had any part in it — either by encouraging Mr. Flynn to lie, or because he has been willing to wait out the “situation” and see if Mr. Flynn could get away with it.

For some time, the question of obstruction revolved entirely around the true reasons for Mr. Comey’s firing. Mr. Trump’s lawyers have argued that the president was within his constitutional rights to fire Mr. Comey for any reason — and that, in any event, he had such a reason. They point to the controversy over Mr. Comey’s handling of the Clinton email investigation, and they stress that Deputy Attorney General Rod Rosenstein provided the president with a particularly damning memorandum making the case for the former director’s breach of departmental procedures and standards.

But none of these complexities are present in the Cohen, Manafort and Flynn cases. In those, the president and his agents may have simply sought to undermine lawful inquiries. It bears remembering that when the House Judiciary Committee voted articles of impeachment against Richard Nixon in 1974, Article 1 included a charge against him for lying to Congress. The impeachable conduct was defined to include “condoning” and “acquiescing in,” not only “approving” and “counseling,” false testimony.

The Cohen, Manafort and Flynn cases may reveal yet another instance of such impeachable, and perhaps prosecutable, acquiescence — if not more in the nature of “approving” and “counseling.”

Bob Bauer is a professor of practice and distinguished scholar in residence at New York University School of Law and served as a White House counsel under President Barack Obama.

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