Ken White: Three remarkable things about Michael Cohen’s plea deal

Shortly after becoming president, Trump pressured then–FBI Director James Comey to end an investigation into Trump’s former campaign surrogate and national-security adviser, Michael Flynn, who had lied to federal investigators about his contacts with Russian officials. Comey refused and was later fired by Trump. Although the Trump administration initially said Comey was fired for improperly disclosing information about the federal investigation into Clinton’s handling of classified emails, he later told Russian officials in the Oval Office and an NBC reporter in a televised interview that he had done so because of the Russia investigation. Trump publicly fumed that his choice for attorney general, Jeff Sessions, had recused himself from that investigation after misleading Congress about his contacts with the Russian ambassador, rather than protecting Trump.

Republicans deployed a new line of argument—that Trump’s behavior was simply so careless and blatant that he couldn’t have intended to commit a crime. They dismissed the growing number of former Trump aides pleading guilty to federal crimes unrelated to the president’s conduct with Russia. Republicans scoffed at the president’s felony violation of campaign-finance laws as small potatoes. Trump stalwarts also argued that because firing an FBI director is within the president’s authority, it could not be considered obstruction of justice, even if Trump was trying to stop the investigation. Indeed, that was the core argument of a memo written by William Barr, Trump’s choice to replace Sessions as attorney general.

But Trump’s reported conduct would exceed even the high standards for presidential criminality set by Barr in his memo. Barr wrote, “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.” During his confirmation hearing earlier this week, Republican and Democratic senators pressed Barr to clarify his argument.

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When the Minnesota Democrat Amy Klobuchar asked, “A president persuading a person to commit perjury would be obstruction. Is that right?” Barr answered, “Yes.” When the South Carolina Republican Lindsey Graham asked Barr, “If there was some reason to believe that the president tried to coach somebody not to testify or to testify falsely, that could be obstruction of justice?” Barr again replied in the affirmative. By the sky-high standards set by his own handpicked choice for attorney general, Trump’s reported conduct would be a crime.

“If it is true, and can be proven, that Trump directed Cohen to lie to Congress, then he has no wiggle room,” said Alex Whiting, a law professor at Harvard and a former federal prosecutor. “There has been some debate about whether acts by the president to curtail a criminal investigation can be obstruction, since he is the head of the executive [branch] … but instructing or encouraging another person to lie under oath to Congress falls outside of that debate. There is no question that it was a crime for Cohen to lie to Congress, and Trump’s role in soliciting or directing that lie makes him criminally liable as well.”