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B uzzFeed's extraordinary report released last night suggests that President Trump has conspired to provoke perjury and obstruct justice. This excited many Democrats. But even if BuzzFeed is right in its central claim – according to two federal law enforcement sources, Trump reportedly told his former lawyer, Michael Cohen, to lie to Congress – I'm not convinced that this is a major problem for the president. Except law enforcement, law enforcement agencies have audio recordings of Trump or his nearest circle, which speak of this effect.
The key here is the burden of proof. According to BuzzFeed, he allegedly "personally ordered [Cohen] to lie" in front of Congress about when the Trump organization had ended its efforts to build a hotel in Moscow. If this is true, Trump would appear guilty of at least three federal criminal offenses: obstruction of justice, perjury and conspiracy.
But it is not enough for prosecutors to believe that this is true; they must be able to prove it. And at least in BuzzFeed's report, it's not at all obvious that they have the means to do it.
BuzzFeed claims that e-mails and interviews with Trump staff members corroborated investigators' conviction of Trump's guilt, but it is unlikely to be sufficient to prosecute. The investigators need an irreproachable medico-legal connection that binds Trump to an illegal conspiracy.
I sincerely doubt that emails or other notes would suffice, because Trump 's defense team could allege that someone else sent those notes without his knowledge or without its approval. But the biggest weakness here is Cohen himself. Whether you think Cohen's cooperation with the government is an act of contrition or an act to save himself even more from prison, Cohen is ultimately a weak prosecution witness. He is a proven liar with an obvious conflict of interest. Any defense team would have a day on the field with Cohen. They suggest that all he says is to save themselves by offering a bigger fish.
A successful lawsuit would require forensic evidence that a person very close to the president, such as his son-in-law Jared Kushner or his son Donald Trump Jr., was involved in a conspiracy on behalf of the president. In fact, prosecutors would likely refuse the case on the ground that the alleged harm to the nation would outweigh the low likelihood of conviction.
That does not mean that Trump came out of the woods. It could be faced with much more damaging revelations about Russia in the coming months.
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