Here we go again, one last time (hopefully): the BuzzFeed article and the OSC’s reply to it

To recap: yesterday BuzzFeed published an article alleging that the special counsel has evidence, inter alia, that Trump “personally instructed [Cohen] to lie” about important particulars about the Trump Tower project.

Later in the day, Peter Carr, the spox for the Office of Special Counsel, said in response to BuzzFeed that aspects of the BF article are “inaccurate” :

It seems clear to me today that there are a number of different possibilities that need to be evaluated here:

(1) Trump personally instructed Cohen to lie in the clearest and most direct way: by telling him to do so in person; phoning him and telling him to do so; or sending an email or note telling him to do so. (This, I think, is the most natural interpretation of “personally instructed [Cohen] to lie.”)

(2) Trump directed Cohen to lie, but the direction was indirect, through lawyers and others who worked with Cohen on his (perjurious) statement to Congress, and who wittingly or unwittingly served as the intermediaries for getting Trump’s directions to lie to Cohen.

(3) Trump never directed Cohen to lie, either directly or indirectly. Instead, Cohen simply inferred, on a number of different grounds, that this is what Trump wanted him to do, and perjured himself in his Congressional testimony simply out of loyalty to Trump.

(4) Any of the above (1–3) might be true, but what the OSC was objecting to was the allegation (which can be read into the BuzzFeed article) that the “two law enforcement officers” who were the source for BF (in this and previous articles) are associated with the OSC, or at least have a closer association with the OSC than is the case, and therefore that the leaks for the BF article came, directly or indirectly, from Mueller’s office.

(5) BuzzFeed also says:

“The special counsel’s office learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents. Cohen then acknowledged those instructions during his interviews with that office.”

This suggests the possibility — IMO pretty clearly implies — that Cohen only acknowledged the “instructions” after having been confronted with the receipts. This in turn would suggest that Cohen was not being fully cooperative at this point in the Mueller investigation. The OSC might have wanted to counter this allegation, and assert publicly that Cohen was more cooperative with the office than the BF narrative might suggest.

In a number of threads yesterday, I argued that the key to Peter Carr’s statement on behalf of the OSC rests entirely on (4) alone, but having slept on the matter, I now think that (4), while valid, is only partially valid. It is not sufficient in itself to explain the Carr statement.

Note that the OSC made two assertions in its response to BuzzFeed:

“BuzzFeed’s description of specific statements to the Special Counsel’s Office are not accurate,” and

“[BuzzFeed’s] characterization of documents and testimony regarding Michael Cohen’s Congressional testimony are not accurate.”

The conclusion is inescapable that the OSC has asserted that there was something about specific statements and the characterization of specific documents and testimony in the BF article that were “inaccurate.” If so, Carr’s statement must amount to more than simply an attempt to dissociate the OSC from “law enforcement officers” in the New York AG’s office or the FBI’s SDNY office and its leakers.

That leaves us with either (1), (2), or (3) above. I now think that the true explanation must be a combination of (2), (4), and (quite likely) (5).

In a post today, @emptywheel appears to have receded from the strong claim she had made yesterday that BuzzFeed (which she said deserved kudos), had come up with stronger and more explicit evidence than any other media source has found to date that Trump suborned perjury. At least, that is the only plausible reading of in her posting today: “Peter Carr speaks” that I can find.

For example, she says:

“… nothing explains the coordinated story-telling of multiple Trump flunkies other than Trump’s approval of those lies. … especially on the June 9 meeting, the evidence that Trump lied and ordered others to has already been made public. Trump’s tacit (and explicit, with the June 9 statement) approval of serial false statements, to Congress, to the FBI Director, to FBI Agents, and to Mueller, is an impeachable offense.”

Well, for what it’s worth, I doubt very much that enough Republicans would flip and vote to impeach or remove Trump from office if, in the event, Mueller only produces evidence that Trump sat back and watched as flunkies and associates perjured themselves, having discerned what he wanted them to say. After all, doing that is certainly not a crime. And people are very much on the lookout for a crime. That is why a great deal turns on whether Mueller has evidence, going beyond (3), to support either (1) or (2), and why the BuzzFeed story created such a storm of media attention and controversy.

For a very long time @emptywheel has urged that Trump was guilty of coordinating lies (and therefore suborning perjury), as in an article of hers dated 7 Dec 2017. She still seems to think so today herself, but also seems to have adopted the position that the Carr statement is an assertion by the OSC that BuzzFeed has no evidence for this. In other words, according to @emptywheel, Carr’s assertions that “BuzzFeed’s description of specific statements to the Special Counsel’s Office are not accurate,” and that “[BuzzFeed’s] characterization of documents and testimony regarding Michael Cohen’s Congressional testimony are not accurate” amount to denying that the special counsel has any specific statements or documents or testimony supporting either (1) or (2) above. So far as the special counsel is concerned, therefore, we must abandon (1) and (2), and retreat to (3).

But I think all that the Carr statement can be read to mean is that the OSC has found no evidence itself to support (1). Accordingly, I do not think that Carr’s statement was meant to be read as a denial that the OSC has any evidence to support (2). (To be clear, I’m not saying that Mueller’s office has ever ASSERTED (2); I’m just saying that it has never DENIED that it has evidence supporting (2).)

@emptywheel’s retreat seems to me to be unnecessary and in fact problematic.

In support of this retrenchment, @emptywheel emphasizes Cohen’s allocution (his personal statement at the time of his sentencing), in which he makes no claim whatever that he was directed by Trump to lie, either directly or indirectly. All Cohen says in the allocution is that he made “misstatements to be consistent with Individual 1′s political messaging and out of loyalty to Individual 1.”

This is all that Cohen admitted to in his allocution, but as I pointed out in threads yesterday, it is all that he had to admit to for the purposes of his sentencing. For the purposes of the sentencing, he was equally culpable whether he was directed to perjure himself by Trump or whether he decided to do so entirely on his own initiative out of loyalty to Trump.

Furthermore, it is significant — as Ryan Goodman (@rgoodlaw) and Ken Dilanian (@KenDilanianNBC) pointed out yesterday — that in the “Sentencing Memorandum on Behalf of Michael Cohen,” filed by Guy Petrillo, Cohen’s lawyer, there is a statement about direction.

(Note: It’s now 6:57 PM PST and I’ve just noticed this WaPo article. It confirms, I think, what I’ve been writing and what I was just about to write! So anyway, let me finish.)

Here is the passage:

“We address the campaign finance and false statements allegations together because both arose from Michael’s fierce loyalty to Client-1. In each case, the conduct was intended to benefit Client-1, in accordance with Client-1’s directives. [emphasis mine] Michael regrets that his vigor in promoting Client-1’s interests in the heat of political battle led him to abandon good judgment and cross legal lines.”

Today’s WaPo article says:

“The [BuzzFeed] reporter informed Mueller’s spokesman, Peter Carr, that he and a colleague had ‘a story coming stating that Michael Cohen was directed by President Trump himself to lie to Congress [emphasis mine] about his negotiations related to the Trump Moscow project,’ according to copies of their emails provided by a BuzzFeed spokesman. … People familiar with the matter said after BuzzFeed published its story — which was attributed to ‘two federal law enforcement officials involved in an investigation of the matter’ — the special counsel’s office reviewed evidence to determine if there were any documents or witness interviews like those described, reaching out to those they thought might have a stake in the case. They found none, these people said.”

However, BuzzFeed is standing by its story. It has clearly seen — or at least its two law enforcement officers have seen — evidence supporting the claim that Trump is guilty of suborning perjury. The evidence BuzzFeed or its sources have might fall short of the claim that Trump personally ordered Cohen to lie — and maybe that is where the dispute lies — but in view of the “Sentencing Memorandum on Behalf of Michael Cohen” and BuzzFeed standing behind its story despite a storm of criticism from all quarters, I believe that it will turn out at the end of the day that the evidence supports claim (2) above.

Final note: the WaPo article also seems to me to confirm what I wrote at length in a number of threads yesterday: that the OSC felt compelled, at least in part, to dissociate itself from the leaks (surely from the SDNY) that led to the BuzzFeed story. The WaPo article says:

“The BuzzFeed reporter informed Mueller’s spokesman, Peter Carr, that he and a colleague had ‘a story coming stating that Michael Cohen was directed by President Trump himself to lie to Congress about his negotiations related to the Trump Moscow project,’ according to copies of their emails provided by a BuzzFeed spokesman. Importantly, the reporter made no reference to the special counsel’s office specifically or evidence that Mueller’s investigators had uncovered.” [emphasis mine]

For an argument and evidence that the two law enforcement officers that BuzzFeed has used as its sources for stories on Trump Tower Moscow for some time now are in the NY offices of the FBI or the NY AG rather than in the OSC, see my thread from last night.