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How the Democratic House Helps Mueller

The Democratic House could mean more perjury charges in Mueller's Russia investigation.
January 9, 2019
How the Democratic House Helps Mueller
(Photo by Chip Somodevilla/Getty Images)

As Nancy Pelosi took the speaker’s gavel last week, Democrats were gearing up for a substantial uptick in congressional oversight of President Trump and the executive branch bureaucracy.

But a Democrat-controlled House might do more than shore up the checking-and-balancing function of the legislature under Article I of the Constitution. It could also add steam to the various probes into Russian interference in the 2016 elections—including the one headed by Special Counsel Robert Mueller—by enabling more criminal prosecutions of Trump allies who may have lied to Congress in ways that benefited the president.

The zillion-dollar question about Mueller’s probe is whether or not a pattern of White House influence will ultimately emerge. After all, witness tampering is a factor that, for some conservatives, distinguishes this president’s wrongdoings from those of the two presidents impeached before him (Nixon and Clinton).

In evaluating this question, consider December’s court filings in the prosecutions of former Trump campaign chair Paul Manafort and his personal lawyer Michael Cohen.

In government papers setting forth Manafort’s alleged breach of his plea agreement, the special counsel contended that, after signing his plea agreement in September of 2018, Manafort lied about his contacts with Trump administration officials “while they were in the administration.” In fact, Mueller wrote, “[t]he evidence demonstrates that Manafort had contacts with administration officials. For instance, in a text exchange from May 26, 2018, Manafort authorized a person to speak with an administration official on Manafort’s behalf.”

Trump’s current lawyer, Rudy Giuliani, has confirmed that Manafort’s attorney had briefed him even after the plea—presumably pursuant to a joint defense agreement that may (or may not) have rendered the discussions privileged. But the government filing makes no mention of lawyers. Manafort was arrested by the FBI on October 30, 2017, and “according to another Manafort colleague, Manafort said in February 2018 that Manafort had been in communication with a senior administration official up through February 2018.” Moreover, the special counsel wrote, “[a] review of documents recovered from a search of Manafort’s electronic documents demonstrates additional contacts with administration officials.”

If Manafort’s post-arrest contacts with the White House were merely routine attorney communications, Mueller would likely not have fingered this lie as constituting a material breach of the plea agreement. Something else seems to be going on.

The special counsel revealed similar shenanigans between Cohen and the White House in its sentencing memorandum regarding Cohen’s guilty plea for making false statements to Congress. Among other things, Cohen lied about having “in fact conferred with Individual 1 [i.e. Trump himself] about contacting the Russian government before reaching out to gauge Russia’s interest in . . . a meeting.”

In outlining Cohen’s assistance with the special counsel’s investigation, the memo states that “Cohen provided relevant and useful information concerning his contacts with persons connected to the White House during the 2017-2018 time period.”

Note that the FBI’s raid of Cohen’s office and hotel room occurred on April 9, 2018; Cohen reportedly told friends that he expected to be arrested in June. Although the special counsel filing does not reveal how far into 2018 Cohen continued to communicate with persons connected to the White House, it does indicate that those contacts were probably not routine. If they were, Cohen’s bean-spilling would not be listed as useful to the Mueller probe for purposes of calculating his sentence.

Here again, one can’t help but wonder if Trump would have ventured to communicate with Cohen about what he should say to criminal investigators about the president’s dealings. Cohen later stated in open court that Trump directed him to commit a felony by making hush money payments to Stormy Daniels. If there was more Trump-Cohen collusion, it would represent a difference only in degree, not in kind.

Given Cohen’s 50-plus hours of interviews with government investigators—along with former White House counsel Don McGahn’s 30 hours of his own—it seems at least plausible that Mueller has reached some preliminary conclusions regarding whether the White House tampered with witnesses. It’s significant, moreover, that Mueller has shown a willingness to prosecute people for lying to Congress, and that the Senate Intelligence Committee has already referred possible perjury cases to Mueller.

For his part, new House Intelligence Committee Chairman Adam Schiff has pledged to turn over witness transcripts to Mueller as a first order of business—transcripts that outgoing Republican Chair Devin Nunes refused to release after the committee’s truncated investigation of Russian interference in the election. And this creates further dangers for Trump.

From March 2017 to March 2018, the committee spoke to a parade of witnesses whose testimony—if it constituted perjury—could lead to more “flipping” once the special counsel has it. These witnesses included former Trump campaign manager Corey Lewandowski, White House communications director Hope Hicks, White House chief strategist Steve Bannon, Russian-American businessman Felix Sater, former Representative Dana Rohrabacher, former campaign advisor Roger Stone and, perhaps most importantly, Jared Kushner and Donald Trump Jr.

If Mueller has evidence that any of these people lied to Congress, he will gain new leverage to get them talking about matters that could implicate the president—including whether they were encouraged to coordinate their testimony with the White House.

And it’s not a far leap from witness tampering to impeachment.

Impeachment under the Constitution for “high crimes and misdemeanors” does not require a conviction of a crime. Nonetheless, the federal witness tampering statute, 18 U.S.C. § 1512, makes it a crime to “corruptly persuade another person, or attempt to do so . . . with intent to influence, delay, or prevent the testimony of any person in an official proceeding.” This offense has already helped topple one president and nearly topple another.

Nixon’s articles of impeachment included “approving, condoning, acquiescing in, and counseling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings.”

Clinton’s articles of impeachment charged him with having “engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up, and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him in a duly instituted judicial proceeding.”

Of course, while Nixon resigned rather than face conviction in the Senate, Clinton was acquitted. Politically, this may be a distinction without a difference. If evidence becomes public that Trump tried to self-interestedly influence witnesses in a criminal probe, Republicans would be hard-pressed to use Clinton as a reason not to apply precedent to a member of their own party.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.