Even as news breaks each weekly, the most perilous part of the Russian investigation from President Donald Trump’s standpoint is yet to come. Today, Mayor Rudy Giuliani has joined the President’s legal team and made it clear his client is still considering meeting with the Special Counsel Robert Mueller. But the FBI raids on the office, home and hotel room of longtime Trump attorney Michael Cohen represent a stunning law enforcement aggressiveness that casts long shadows over prior reports that President Trump is not currently considered a target.
In prosecutors’ parlance, “Target” means there is a likelihood of being indicted based on existing evidence. So not being a target might have seemed like good news for the White House, but any such status is subject to change. Since the Special Counsel is still apparently insisting on interviewing the President, that Interview could change everything. Obstruction of justice is traditionally focused upon fabricating, concealing or destroying evidence – or lying to federal investigators – rather than firing an FBI director. And so the making of false statements could risk the unmaking of a President.
Although Clinton’s Presidency survived, false statement, perjury and obstruction were the basis of his impeachment charges. Navigating through an increasingly broad range of issues underpinned by myriad witnesses and documents may be the greatest challenge of Trump’s Presidency. There are many perils in this minefield.
AVOIDING THE “HE SAID/SHE SAID”
The President’s legal team is assuredly on the lookout for a new version of past Presidential perils. If Ken Starr can start investigating Whitewater and end up pursuing President Bill Clinton on lies about personal intimacy, the latest allegations against President Trump could also be worrisome. We don’t know the truth but the President’s lawyers will be negotiating hard to keep these issues out of the Interview because they seem irrelevant to collusion with Russia. Even though the claimed conduct took place years before Trump’s Presidency, prosecutors often see relevancy broadly. And because the Cohen search warrants required probable cause of criminal activity, prosecutors may contend that they have a right to question President Trump about pre-election moves to silence an accuser. If Cohen’s payment was arguably conceived to benefit candidate Trump’s Presidential campaign by avoiding a damaging news story, it might be seen as an unreported and illegal campaign contribution, the DOJ theory attempted unsuccessfully against former Senator John Edwards.
CONTRADICTING JAMES COMEY
Mueller’s team will almost assuredly ask President Trump about the loyalty pledge allegedly sought from Comey as well as the alleged request to drop the investigation of Michael Flynn. And it should be evident that Comey is considered very credible by former colleagues such as Robert Mueller. Additionally, Comey reportedly has contemporaneous file memos and third party conversations to corroborate his version of Presidential conversations.
Assuming Mueller’s team believes what Comey said, any Trump Interview contradictions that are material could result in findings of false statements and obstruction. Facing this dilemma, some witnesses develop poor memories – fewer recollections, some suggest, mean fewer perjury risks. Others follow a non-confrontational script about possible “misunderstandings.” And many simply tell the truth. After all, Comey’s statements about Trump would be unlikely to establish crimes unless Trump falsely denies them to the Feds.
SPINNING THE MEETING AT TRUMP TOWER
The meeting on June 9, 2016 at Trump Tower with Donald Trump, Jr., Paul Manafort, Jared Kushner and Russian representatives led initially to misleading public statements claiming a focus on U.S. adoptions of Russian children as opposed to getting dirt about Hillary Clinton. Mueller’s team has apparently examined whether President Trump had a role in crafting the misleading statements. President Trump can assume that the extent of his participation has been thoroughly detailed by other witnesses. It is also evident that the Feds believe the original statements were intentionally misleading. If substantial discrepancies emerge between the President’s Interview statements and those of credible witnesses about his role in drafting the press release, the consequences could be severe. The key question may be whether the misleading statements were drafted only for the media or were they a script also constructed for future FBI purposes. While obstruction of the press is not a crime, obstruction of a federal investigation is a formula for disaster.
Having pled guilty and promised truthful cooperation to prosecutors in exchange for sentencing leniency, Michael Flynn and Rick Gates represent a chilling mix of past Presidential proximity, active involvement in Russia-related issues and powerful motivation to incriminate others. General Flynn, the former national security advisor, was closely tuned in on Russian issues and was the intended beneficiary of President Trump’s alleged request to Comey to drop him as an investigative target. Assuming President Trump discussed with Flynn any plans to help Flynn, he can expect that interviewers will closely compare his account with Flynn’s – substantial variances could be seen as substantial crimes.
Rick Gates, the long-time deputy of former Trump campaign chair Paul Manafort, remained close to the Trump candidacy during the spring and summer of 2016 as well as during the post-election transition. His cooperation is an unsettling wild card for Trump’s team. Facing
decades of potential prison time, Gates is assuredly providing testimony about everything that Manafort told him as well as his own interactions with candidate Trump. And the informational exposure is broader still. Simply being there for more than seven months suggests that Gates heard plenty and – whether incriminating or not – President Trump’s team needs to anticipate that investigators are armed with a broad ranging Gates narrative. If there were campaign secrets before, virtually all have now been delivered to Mueller’s team.
As was seen in the 1990’s, it only takes one accuser to place a bull’s eye on a President for making false statements to the Feds. In the present investigation, there are dozens of witnesses who have spoken to Mueller’s investigators and any witness who claims direct knowledge of a Trump conversation may emerge as a direct source of a Trump contradiction. Testimonial falsity that is material can be criminal and it will be Robert Mueller who will report – or perhaps even indict – based on his determinations as to who is lying to federal investigators.
Some legal advisers would insist strongly that, if the President is not now a target, he should attempt to avoid the Interview if possible. With the FBI search warrants of attorney Cohen, such concerns are magnified exponentially. Even the attorney-client privilege could be jeopardized if communications are found to be in furtherance of a crime or fraud, a chronically ambiguous area of law. But if the Interview is refused, the Special Counsel could attempt to subpoena President Trump to testify before a Grand Jury which could inject the process into uncertain constitutional territory.
Assuming President Trump agrees to the Interview, his lawyers will certainly give him the classic advice: stick with the truth, just the facts and don’t guess or speculate. These principles are well known to this President who is litigation savvy and will be prepared. But no President has ever encountered a minefield quite like this one.
Legal analyst Kendall Coffey is a former U.S. Attorney, Southern District of Florida under President Bill Clinton and founder of Coffey Burlington Law in Miami.