On Thursday night, BuzzFeed News’s Jason Leopold and Anthony Cormier reported that President Donald Trump instructed his personal lawyer, Michael Cohen, to lie to Congress about Trump’s involvement in plans for a real estate project in Moscow.
The BuzzFeed report, based on testimony and facts gathered by special counsel Robert Mueller’s investigation, is — if true — clear evidence that Trump committed obstruction of justice, which is a focus of the Mueller investigation and a federal crime.
In addition to coming out in the middle of a government shutdown, BuzzFeed’s scoop comes as the Senate Judiciary Committee prepares to vote on the nomination of Attorney General William Barr — who would take over oversight of Mueller’s investigation if confirmed. And that puts Barr in a very interesting position.
Because Barr is on the record, multiple times, saying that if a president told a witness to lie, that would be obstruction of justice. And that, of course, is precisely what Trump now stands accused of.
Democrats have been skeptical of Barr’s willingness to defend the presidency from investigation. He sent an unsolicited 20-page memo to the Department of Justice in June 2018 arguing that Trump did not obstruct justice by firing FBI Director James Comey in May 2017.
In that memo, however, Barr did make clear that there were some things the president could do that would qualify as obstruction of justice — including offenses committed by Bill Clinton prior to his impeachment in 1998, and Richard Nixon (who was almost certain to be impeached in 1974 when he resigned instead). And among those things: “suborning perjury,” which is to say, encouraging a witness to lie under oath.
Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion - such as his complete authority to start or stop a law enforcement proceeding -- does not involve commission of any of these inherently wrongful, subversive acts.
Barr wrote that memo in June — months before he was nominated to serve as attorney general. But he reiterated it during his confirmation hearings, days before the BuzzFeed article came out.
Ironically, the question about the president instructing a witness to lie came from Senate Judiciary Committee chair and frequent Trump ally Lindsey Graham (R-SC).
William Barr said the president coaching a witness to give false testimony or to conceal evidence would be obstruction of justice.— Brian Tashman (@briantashman) January 18, 2019
According to @BuzzFeedNews, Trump directed Cohen to give false testimony to Congress about the Trump Tower Moscow project: https://t.co/BQcHjYyasM pic.twitter.com/iF7anKgREd
GRAHAM: 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: Yes. Under that — under an obstruction statute, yeah.
GRAHAM: If there was some evidence that the president tried to conceal evidence, that would be obstruction of justice, potentially.
This doesn’t mean Barr is necessarily going to decide that Trump should be impeached or removed from office. It’s not clear exactly what evidence, if any, the special counsel’s investigation has specifically about Trump telling Cohen to lie — and if they don’t have anything in writing or on tape, Trump defenders can be expected to impugn Cohen’s character as someone who is, well, willing to lie to get what he wants.
But if the BuzzFeed story checks out, the document that made Democrats worry Barr would interfere in the Mueller investigation could end up committing him to allow Mueller to go forward.