The BuzzFeed — Peter Carr controversy. The evidence that Trump directed Cohen to lie exists, but it’s not where Giuliani looked for it. And Don Jr should be very, very worried.

On January 17, 2019, at 10:11 p.m. ET, BuzzFeed authors Jason Leopold and Anthony Cormier published an article entitled “President Trump Directed His Attorney Michael Cohen To Lie To Congress About The Moscow Tower Project.”

On 4:27 P.M. on January 18, 2019, @BuzzFeedNews reported that Peter Carr, spokesperson for Special Counsel Robert Mueller’s office, had issued the following statement in response to BuzzFeed’s article:

“BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.”

This of course raised the question: What was the aspect, or what were the aspects, of the BuzzFeed article that the OSC (Office of Special Counsel) was disputing?

Answering this question cannot be done without a theory of what actually did happen; what BuzzFeed alleged had happened; and what had transpired between the publication of the BuzzFeed article and Carr’s public statement.

Here’s my theory (Interpretation 1):

Leopold and Cormier have gotten it right. (Let me note here that BuzzFeed is standing by its story.) Evidence exists, and BuzzFeed’s sources have confirmed it, showing that Trump directed Cohen to lie to Congress. Furthermore, Mueller has the same evidence. But there was no meeting, and more generally, no one-to-one communications between Trump and Cohen, in which Trump told Cohen to lie.

In the sentencing memo (pp. 20–21) filed on his behalf by Cohen’s lawyers, Cohen said he was aware from President Trump’s public statements that he wanted to minimize and disavow his commercial and political ties with Russia. That was very general messaging, not directed to anyone in particular (including Cohen). And Cohen said in his sentencing memo that he had wanted his Congressional testimony to align with Trump’s publicly expressed messaging.

But the BuzzFeed article goes well beyond this, and asserts that federal investigators, including Mueller, have evidence that Trump gave instructions specifically to Cohen to lie about the extent of Trump’s dealings with Russia over the Trump Tower project. It is in this sense that it can be said that President Trump “personally instructed” Cohen to lie.

Specifically, Leopold and Cormier allege that President Trump directed Cohen to lie through intermediaries associated with the Trump Organization. The evidence for that is found in evidentiary materials that are known to two independent but parallel investigations. One of the investigations is in New York, in either the Office of the Attorney General (OAG) or in the FBI’s office (SDNY) or both. The other is in Washington D.C., in the Office of the Special Counsel (OSC).

But that is not the way the BuzzFeed article has been read by most journalists and commentators, and perhaps even more consequentially, by the White House.

Unfortunately, the BuzzFeed article is not as clear as it might have been about its central allegation. Whether this was due to journalistic sloppiness or to concern to protect its sources is an interesting and important question.

I’m inclined to think it was the latter. In particular, on the matter of sourcing Leopold and Cormier went out of their way to direct the reader’s attention away from New York to the OSC in Washington DC. The article was also at fault for saying at one point that Trump told Cohen to lie. This language doesn’t compel the conclusion that there was a one-to-one communication in which Cohen received this direction (a meeting, a phone call, a written message or whatever), but that is certainly a possible interpretation of the claim that President Trump told Cohen to lie, and arguably it is the most natural one.

As a result, most journalists, commentators, and the White House have understood Leopold and Cormier to have alleged the following (Interpretation 2):

The Office of Special Counsel (Mueller) has evidence that there was a meeting in which Trump directly told Cohen to lie to Congress. BuzzFeed has learned this from two highly placed law enforcement officers affiliated with the OSC. Someone in the OFC has leaked the story that Trump told Cohen to lie to Congress.

My theory is that Carr’s statement was issued to dispute this quite natural interpretation of the BuzzFeed article, rather than what BuzzFeed was actually claiming. I believe my theory is supported by a close reading of the BuzzFeed article and by what Rudy Giuliani said to New Yorker reporter Isaac Chotiner in a phone interview on Monday afternoon, January 21.

Since the clearest statements about what the OSC felt it had to dispute are found in the New Yorker’s interview with Rudy Giuliani, it is helpful to begin there.

The evidence that Trump directed Cohen to lie exists, but it’s not where Giuliani looked for it

Here’s Giuliani in a nutshell (this is my paraphrase from his interview with Isaac Chotiner in the New Yorker):

I don’t know what Cohen said to Mueller, but I have seen all the receipts that Mueller might have that could corroborate the claim that President Trump told Cohen to lie to Mueller, and I know that there is no such evidence. Carr’s statement was meant to confirm this.

Here’s the actual text:

Chotiner: “Where are we now with Trump and Cohen and the BuzzFeed story, and your response to it?”

Giuliani: “I guess the BuzzFeed story — I don’t remember what it said about Cohen — but it said there was corroboration that the President talked to Cohen and told him to lie [emphasis mine] about, I guess it was, the Moscow proposal. There are no tapes, there are no texts, there is no corroboration that the President told him to lie. That’s why the special counsel said that the story was inaccurate. And the reality is that the President never talked to [Cohen] and told him to lie [emphasis mine]. And I don’t know what Cohen is saying, but certainly the idea that two federal agents said that there was corroboration is totally untrue.”

“Never talked to Cohen and told him to lie.” That’s Giuliani’s take on the BuzzFeed allegation in a nutshell.

Giuliani must be referring here to the materials captured in the raid of Cohen’s three premises in NYC on 9 April 2017. Giuliani was able to go through these materials to determine which of them deserved to be protected by attorney-client privilege. Since they were materials in Cohen’s possession, one would expect that they would involve communications in which Cohen was an interlocutor or correspondent.

So clearly what Giuliani meant was this: If there was a conversation or some other one-to-one communication between Trump and Cohen, it would have shown up in these materials. Having had a chance to review all of these materials, Giuliani felt he was in a position to deny the claim (which he took to be BuzzFeed’s central allegation) that there was such a communication and that Mueller had receipts for it.

This is confirmed later on in the Chotiner interview:

Giuliani: “But I can tell you, from the moment I read the story, I knew the story was false.”

Chotiner: “Because?”

Giuliani: “Because I have been through all the tapes, I have been through all the texts, I have been through all the e-mails, and I knew none existed. And then, basically, when the special counsel said that, just in case there are any others I might not know about, they probably went through others and found the same thing.”

The weakness of Giuliani’s interpretation of the Carr statement is that it is based exclusively on the materials the FBI obtained when it raided Cohen’s premises in April 1. No doubt Giuliani is thoroughly familiar with these materials, and he is no doubt right that there is nothing in those materials to support the central allegations of the BuzzFeed article. And no doubt Giuliani is justified as well in claiming, in effect, that if there were any communication in which Trump directed Cohen to lie one-to-one in a face to face meeting, phone call, or text message, evidence for that would be found in that cache of materials.

It was quite reasonable for Giuliani to suppose all this, but he fails to recognize that Trump could have ordered or given instructions to Cohen to lie by other means, e.g., by giving that direction through individuals who have been employees of, or associated with, the Trump Organization. This, in fact, is exactly how on apriori grounds one would have supposed any “direction” or “personal instruction” from Trump to Cohen to have occurred. Trump’s preference, from the very outset of his business career, has been to handle such matters at arm’s length through associates or attorneys, rather than directly himself.

But it is even more extraordinary that Giuliani (and many others) have failed to notice that BuzzFeed pretty clearly tells us that this is what did happen — as in: “interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.” There is no reason to think that direct, one-to-one communications between President Trump and Cohen would be found in these evidentiary materials.

Giuliani took the BuzzFeed article to mean that the leaks came from Mueller’s office, and most journalists and commentators have interpreted it this way as well.

Chotiner: “If that’s the case, were you surprised the Mueller team said that the BuzzFeed story was flawed?”

Giuliani: “… I think they have some good people there. But, also, they were basically being victimized. The story said two federal agents gave this information out. The federal agents would have had to work for them.

Chotiner: “It could have been people from the Southern District of New York office.”

Giuliani: “Kinda. It could have been, but everything pointed back to . . . . BuzzFeed made it sound like it came out of the special counsel’s office. I think they were angry on their own. It didn’t take us to get them angry. I would have been angry.”

It wasn’t just Giuliani and the White House who read it this way. Most journalists and commentators did as well. They were doing so even after the dust had settled somewhat and they had had time to give the matter more thought. For example, Newsweek’s Jason Lemon said on January 21, the day of the New Yorker’s interview with Giuliani:

“Last week, BuzzFeed reported, citing two high-level anonymous sources from Mueller’s team, that Trump’s former lawyer, Michael Cohen, was allegedly instructed by Trump to lie to Congress about plans for Trump Tower Moscow.”

So let’s do a close reading of the BuzzFeed article itself

A close reading of the BuzzFeed article shows that it was actually pointing in a quite different direction from the way Giuliani, Lemon, and most other journalists and commentators were interpreting it. However, as we shall see, there is some justification for their reading in the article itself. This was a serious enough matter that the OSC felt it had to respond to the article and issue the statement. It must have been especially concerned with the charge that the leaks must have come from the OSC.

So let’s take it from the top.

As previously noted, the title of the article is: “President Trump Directed His Attorney Michael Cohen To Lie To Congress About The Moscow Tower Project.”

Questions immediately arise: What grounds do you have for making this claim? How did Trump do this? When did he do it? Details, please.

Pretty soon we have Leopold and Cormier telling us:

“Now the two sources have told BuzzFeed News that Cohen also told the special counsel that after the election, the president personally instructed him [emphasis mine] to lie — by claiming that negotiations ended months earlier than they actually did — in order to obscure Trump’s involvement.”

The wording “personally instructed” certainly suggests that the direction to lie mentioned in the headline involved some one-to-one communication or communications between Trump, as in a personal meeting between the two wherein Trump gave the instructions, or in a written note or phone call in which Trump gave those instructions. This fits with how Giuliani, Lemon, and most others read the article, but significantly, the article does not actually assert this. (See the discussion on this point above.) And in fact, when one looks more carefully at BuzzFeed’s description of the kind of evidence that it claims Mueller has, we can see that it is actually a most unlikely interpretation of how Trump directed Cohen to lie.

BuzzFeed’s description of the evidentiary materials appears in the next paragraph:

“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 [emphasis mine]. Cohen then acknowledged those instructions during his interviews with that office.”

Note that this paragraph is very hard to reconcile with the claim that Trump “personally instructed” Cohen to lie in a one-to-one communication. It is possible that some witnesses from the Trump Organization testified to Mueller that there was such a communication, but BuzzFeed does not assert this. Even more significantly, it is unlikely that evidence for such a communication would turn up in “internal company emails, text messages, and a cache of other documents.”

The only place — or at least the only likely place — to find smoking gun evidence that Trump told Cohen to lie in one or more one-to-one communications between the two would be phone records, emails, or textual documents in their possession. But the BuzzFeed article tells us, in effect, not to look for such evidence. BuzzFeed tells us to look elsewhere for the evidence that Trump directed Cohen to lie. Evidence that Trump gave directions to Cohen to lie to Congress indirectly through intermediaries could very well have been provided to Mueller by witnesses and a cache of documentation handed over to Mueller by the Trump Organization. And that is exactly where BuzzFeed implies the evidence lies.

The BuzzFeed article also gives a résumé of past reporting on this project and the ways in which the present reporting goes beyond it. (BuzzFeed has taken the lead in much of this reporting, and indulges here in some self-congratulation over its past, breakthrough reporting about Trump Tower, all of which has held up.)

In the course of that résumé, BuzzFeed draws the reader’s attention to contacts Cohen is known to have had when he was preparing his testimony to Congress. Here, too, the reader’s attention is drawn, not to any contact between Cohen and Trump, but rather to acknowledged contacts between Cohen and others working for or associated with Trump.

Five paragraphs after having located the evidence that Trump directed Cohen to lie in “interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents,” the article attributes the following to the two anonymous law enforcement officers it has used as sources for its reporting:

“Attorneys close to the [Trump] administration helped Cohen prepare his testimony and draft his statement to the Senate panel, the sources said. The sources did not say who the attorneys were or whether they were part of the White House counsel’s staff, and did not present evidence that the lawyers knew the statements would be false.”

The article then goes on to say, citing court filings by the special counsel:

“After Cohen pleaded guilty to lying to Congress about the matter, Mueller’s team filed a memo in court saying he had offered them ‘credible’ and ‘useful’ information over the course of seven interviews. The special counsel wrote that Cohen had provided details about his contacts with ‘persons connected to the White House’ in 2017 and 2018 and about how he had prepared his statements to Congress.”

Although there is nothing in the article to suggest that Trump’s “direction” or “personal instructions” to Cohen occurred in these discussions, this passage should be kept in mind when trying to figure out when, where, and how Trump’s direction to Cohen occurred. It is surely significant that Leopold and Cormier thought it relevant to remind us that there were such discussions between Cohen and attorneys close to the White House when he was preparing his Congressional testimony, because a one-to-one communication between Trump and Cohen directing him to lie wouldn’t have occurred in that framework.

There is, in fact, one very important clue in the article that suggests that Trump’s “personal instructions” to Cohen to lie occurred in discussions in Trump Tower, and that they were conveyed to Cohen by Don Jr.

Keep in mind that we know of at least one other occasion in which, without a doubt, Don Jr. was used by Trump to do something that was intended to (perjuriously) mislead investigators while keeping himself at a distance. I refer to the statement Don Jr issued in response to public inquiries about the June 9 meeting in Trump Tower, which we now know was dictated by Trump on his flight back from Hamburg on Air Force One. I think this is significant because of the following passage in the BuzzFeed article:

“The White House did not return detailed messages seeking comment, nor did an attorney for Donald Trump Jr. or the Trump Organization [emphasis mine].

A spokesperson for the Office of Special Counsel declined to comment.

Cohen also declined comment … ”

Cohen, in effect, became a non-cooperating person for inquiring journalists when he became a witness for Mueller, so it is not surprising that Cohen didn’t reply to BuzzFeed’s request for comment. And it’s not surprising that the WH was contacted.

But why did BuzzFeed ask the Trump Organization and an attorney for Don Jr. for their comments on detailed messages about the article which it was about to publish?

This makes perfectly good sense if Trump directed to Cohen to lie to Congress in the following way: He instructed Cohen to lie (they were instructions to Cohen personally, so they were “personal instructions” in that sense), but the direction was given indirectly through Don Jr., probably in a meeting that Cohen had with Don Jr. in Trump Tower, and for which Mueller has evidence in the form of “interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.”

From top to bottom, the BuzzFeed article ignores the parallel, independent investigations in New York and refers only to the Mueller probe, leading the reader to assume that the leak came from the OSC

I mentioned at the outset that Leopold and Cormier fail to mention that there were and continue to be two independent, parallel, and to some extent overlapping investigations: one in New York (FBI SDNY) and one in Washington DC (the OSC). As I suggested previously, this omission might have been made by BuzzFeed out of a desire to protect its sources. Perhaps BuzzFeed felt that in order to protect its sources it was safer to avoid mentioning the SDNY at all. In any case, the omission was consequential, because it did have the result that almost all the public discussion about the BuzzFeed article has been about the Mueller probe, making it inevitable that most commentators assumed that the leaking came from the Mueller probe.

There is a sentence towards the end of the article that the OSC must have found particularly concerning and objectionable in this regard:

“Cohen also declined comment — but the law enforcement sources familiar with his testimony to the special counsel said he had confirmed that Trump directed him to lie to Congress …”

The OSC has FBI agents (law enforcement officers) working for it, and of course those agents would be in the best position to know what Cohen had testified to Mueller. Nevertheless, the law enforcement officers BuzzFeed referred to in this sentence could very well have been in New York rather than Washington, D.C. In New York, FBI investigators would have had the same evidentiary materials from the Trump Organization that the Mueller probe had, and would have been interested to know what Cohen testified on the matter when he met with Team Mueller. Although the SDNY and the Mueller probes are independent probes, they are almost certainly cooperative ones that are in communication with each other, so agents in SDNY could be expected to know what Cohen had testified when he met with Mueller.

Here again, the article does not say, but allows and even invites, the supposition that the two law enforcement officers who were the sources for this and other BuzzFeed articles were located in the OSC. If they weren’t — and they almost certainly were not — the OSC had sufficient grounds for going public and throwing shade on the BuzzFeed article, because, perhaps more than anything else, Mueller wanted to counter any suggestion that his office had started leaking to the press.

What the Office of Special Counsel was doing in the Carr statement: why it worded it the way it did, and why it issued it

Did the OSC shoot down the BuzzFeed allegation? Your answer to this question will depend entirely on what you think the BuzzFeed allegation was.

As almost all commentators have pointed out, the Carr statement was not a straightforward denial or repudiation. It was instead a highly qualified, carefully worded indictment of some unspecified aspect or aspect of the central allegation, and the statement does not specify what aspect or aspects of the allegation were “inaccurate”:

“BuzzFeed’s description of [emphasis mine] specific statements to the special counsel’s office, and characterization of [emphasis mine] documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.”

As a result, journalistic and other public commentary on the BuzzFeed-Peter Carr controversy remind me of the Gestalt illusion of the duck-rabbit:

I believe the Gestalt effect produced by the Carr statement was intended. The statement’s wording served a number of different purposes for the OSC:

(1) The Carr statement called out BuzzFeed for allowing, and even inviting, the interpretation that (to use Giuliani’s words) “President Trump talked to Cohen and told him to lie.” The OSC denied this, and told BuzzFeed it had no evidence that this ever happened.

(2) An added bonus for the OSC was that, by impugning the BuzzFeed article, Carr’s statement blunted and deflected any possible criticism that the special counsel’s office had leaked.

(3) At the same time, it threw Giuliani (and probably Sekulow, Flood, and others) off the scent. By allowing Giuliani and many others to focus on the allegation as given in Interpretation 2 above, the Carr statement directed almost all public attention away from Interpretation 1, according to which there is evidence that Trump suborned perjury by directing Cohen to lie through individuals in Trump Org and that Mueller has evidence for this in “interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.”

As a result, most commentators now seem to think it most unlikely that Mueller has any evidence that President Trump directed Cohen to lie, which is fine with Mueller.

(4) The Carr statement bloodied BuzzFeed and sent a warning shot across the bow of all other journalists. BuzzFeed and other journalists have been given notice that Mueller is a control freak who insists on directing the narrative wherever he can over the pace and timing of his takedown of Trump and his associates.

Any journalist who tries to steal Mueller’s thunder and get ahead of him in the narrative had better be very careful. Above all, do not allow any suggestion that the Office of Special Counsel leaks. If Mueller sees an opening or opportunity to shoot down any journalism that suggests otherwise, he is likely to seize it.

For the purposes of the Office of Special Counsel: Mission accomplished.

Brilliant.