BuzzFeed story has more to say about media than the president

First there was collusion. Then there was obstruction. Then there was subornation. As the Russia investigation has migrated to every new allegation, a host of experts have proclaimed conclusive grounds for the imminent prosecution and impeachment of President TrumpDonald John TrumpJustice says it will recommend Trump veto FISA bill Fauci: Nominating conventions may be able to go on as planned Poll: Biden leads Trump by 11 points nationally MORE, soon followed by calls for immediate impeachment proceedings, only to be followed by mitigating or conflicting evidence on each allegation.

The latest allegation called a “slam dunk” followed a BuzzFeed story that special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE has proof that Trump told his attorney, Michael Cohen, to lie to Congress. The same news cycle quickly began, even though the story was long on allegations and short on evidence. Then later that night, the Mueller team released a rare public statement that proved to be the ultimate buzzkill for the breaking news: “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.”

ADVERTISEMENT

What is most striking about this boom and bust pattern is how it is repeated with such regularity and so little scrutiny in the media. The president may well be shown to have committed criminal or impeachable acts including subornation. That, however, will require concrete evidence and the satisfaction of the elements of a specific crime. Mueller may supply such facts or he may not. It is the seeming refusal to accept the latter possibility that has increasingly distorted media coverage.

The subornation crime is the latest example. Cohen said he gave false information to federal investigators and to Congress about the effort to build a Trump Tower in Moscow. Cohen told Congress that the attempts to secure the deal ended in January 2016, well before the first Republican presidential primary. Cohen now maintains that attempts continued until June 2016, the same month as the infamous meeting in Trump Tower in New York between Donald Trump Jr.Donald (Don) John TrumpTrump Jr. hits Howard Stern for going 'establishment,' 'acting like Hillary' Trump Jr., GOP senator lash out at Facebook for taking down protest pages on stay-at-home orders Trump jokes he'll 'look into' pardon for 'Tiger King' after asked by reporter at virus briefing MORE, Jared KushnerJared Corey KushnerTrump tries to soothe anxious GOP senators Press: King Donald's goal - no checks, no balances Trump faces criticism over lack of national plan on coronavirus MORE, Paul ManafortPaul John ManafortCohen released from federal prison to home confinement due to coronavirus concerns Advocates call on states to release more inmates amid pandemic Michael Cohen to be moved to home confinement due to coronavirus concerns: report MORE, and Russians promising evidence of crimes committed by Hillary ClintonHillary Diane Rodham ClintonNew FBI document confirms the Trump campaign was investigated without justification California 25 and COVID-19 The Memo: Trump tweets cross into new territory MORE or her private foundation. It also was just a few months before the election.

The discrepancy raises reasonable questions about statements made by Trump during the campaign, as well as statements made by Trump Jr. and Ivanka TrumpIvana (Ivanka) Marie TrumpTrump: food chain 'almost working perfectly again' Lilly Wachowski claps back at Ivanka Trump and Elon Musk's 'red pill' exchange Trump says he gave officials 'option' to wear masks at Rose Garden event MORE about their own involvement in the planning. But those statements do not, on their face, make a strong case for criminal charges. Trump denied “any business deal” in Moscow, which is not necessarily contradicted by the account of Cohen, who was setting up a potential deal that fell through and did not result in the meeting being discussed.

Trump later insisted he never denied pursuing deals. In November 2018 after the Cohen plea, Trump said about the election, “There was a good chance that I would not have won, in which case I would have gone back into the business. Why should I lose lots of opportunities?” In the end, these statements were not made under oath or to investigators. Even if Trump is viewed as lying about the deal, it is not a crime for politicians to lie to the American public. If it were, Washington would be a ghost town.

Then there is statement by Trump Jr. that his knowledge of the deal was “peripheral” and claims by Ivanka of having marginal involvement. Those descriptions are difficult to use as a basis for perjury alone. They are subjective views of the relative involvement or knowledge of one project among many business endeavors. While there may be other challenged statements, it is quite difficult to imagine a charge that Trump Jr. should have said “occasional” or “periodic” knowledge rather than “peripheral.”

ADVERTISEMENT

That brings us back to subornation. Cohen has suggested that he lied to Congress either with the knowledge or the direction of Trump. If that were proven, the president could be guilty of suborning perjury, which is a clear federal crime and would be an obvious ground for impeachment. Moreover, his nominee for attorney general, William Barr, testified in his Senate hearing this week that he does believe a president can be charged with subornation and obstruction for encouraging people to lie.

However, Cohen also has said that he tailored his testimony to public statements by Trump, which is materially different from being told to lie. To establish this crime under Justice Department guidelines, prosecutors must show that a “defendant procured the perjury corruptly, knowing, believing, or having reason to believe it to be false testimony” and that the “defendant knew, believed, or had reason to believe that the perjurer had knowledge of the falsity of his or her testimony.” That requires evidence of intent and knowledge by Trump of when the negotiations or discussions ended, as well as a clear effort to get Cohen to move that date back.

Finally, there is the question of whether such a claim alone would be sufficient for impeachment. Subornation was indeed part of both the impeachment articles against Richard Nixon and Bill ClintonWilliam (Bill) Jefferson ClintonTrump, Biden signal how ugly the campaign will be No 'dole' for America: How to recover from COVID-19 Biden set to make risky economic argument against Trump MORE. When I testified during the Clinton impeachment hearings in 1998, I maintained that lying under oath is indeed a “high crime and misdemeanor” for the purpose of impeachment. The same is true about subornation if proven.

Yet, many members of Congress who called for possible impeachment proceedings this week also voted against the impeachment of Clinton on the same grounds back then. Monica Lewinsky recently confirmed that Clinton pressured her to lie to federal investigators and a federal court. Clinton had brought in his friend, Vernon Jordan, who not only arranged for the lawyer who drafted and filed a false affidavit but also helped Lewinsky, who had very little work experience, secure a lucrative job offer with Revlon, a company where Jordan served on the board of directors.

So Clinton lied under oath, lied to federal investigators, and allegedly suborned perjury. A judge later reaffirmed that his testimony was obvious perjury. When Article III containing those allegations was brought to the floor, the voting members included many current Democratic leaders who insisted that none of it satisfied the standard for impeachment. In the House, they included Nancy PelosiNancy PelosiMcCarthy urges Democrats to pull surveillance bill The Hill's Morning Report - Presented by Facebook - Major space launch today; Trump feuds with Twitter How lawmaker ties helped shape Fed chairman's COVID-19 response MORE, Maxine WatersMaxine Moore WatersMcCarthy yanks endorsement of California candidate over social media posts Top bank regulator announces abrupt resignation GOP pulls support from California House candidate over 'unacceptable' social media posts MORE, Benjamin Cardin, Elijah CummingsElijah Eugene CummingsThe Postal Service collapse that isn't happening House Democrat reintroduces bill to reduce lobbyist influence The Hill's Campaign Report: Amash moves toward Libertarian presidential bid MORE, Steny HoyerSteny Hamilton HoyerLawmakers urge Trump to cancel DC's July 4 event: 'Impossible to put on safely' McCarthy urges Democrats to pull surveillance bill Pelosi blasts House Republicans over lawsuit to halt proxy voting: 'Sad stunt' MORE, Jerry NadlerJerrold (Jerry) Lewis NadlerThe House impeachment inquiry loses another round — and yes, that's still going on Democrats call on DHS to allow free calls at ICE detention centers Warren announces slate of endorsements including Wendy Davis and Cornyn challenger Hegar MORE, and others. Over in the Senate, Joe BidenJoe BidenProsecutor investigating whether Tara Reade gave false testimony as expert witness Poll: Biden leads Trump by 11 points nationally George Floyd's sister says Minneapolis officers should be charged with murder MORE, Charles SchumerCharles (Chuck) Ellis SchumerThe Democrats' out-party advantage in 2020 Democratic leaders say Trump testing strategy is 'to deny the truth' about lack of supplies Trump slams Sessions: 'You had no courage & ruined many lives' MORE, Richard DurbinRichard (Dick) Joseph DurbinDemocratic unity starts to crack in coronavirus liability reform fight Senators weigh traveling amid coronavirus ahead of Memorial Day Congress headed toward unemployment showdown MORE, Dianne FeinsteinDianne Emiel FeinsteinThe Hill's Morning Report - Presented by Facebook - Major space launch today; Trump feuds with Twitter Justice Department closing stock investigations into Loeffler, Inhofe, Feinstein Let's support and ensure the safety of workers risking so much for us MORE, Patrick LeahyPatrick Joseph LeahyThis week: Surveillance fight sets early test for House's proxy voting The House impeachment inquiry loses another round — and yes, that's still going on Hillicon Valley: Trump threatens Michigan, Nevada over mail-in voting | Officials call for broadband expansion during pandemic | Democrats call for investigation into Uber-Grubhub deal MORE, Robert MenendezRobert (Bob) MenendezSenate panel approves Trump nominee under investigation Hillicon Valley: Trump threatens Michigan, Nevada over mail-in voting | Officials call for broadband expansion during pandemic | Democrats call for investigation into Uber-Grubhub deal Senate chairman schedules vote on Trump nominee under investigation MORE, and others voted against conviction.

None of this means a case will not be made for subornation, obstruction, or other crimes against Trump. Moreover, if proven, Trump should be impeached. While these members were wrong in 1998, they would be justified in voting for impeachment on the very grounds they rejected when a Democratic president was the one being judged. For the moment, however, the only thing that is worse than ignoring the evidence of crimes by a president is ignoring the absence of evidence against a president.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.