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 TrumpJan. 6 committee chair says panel will issue a 'good number' of additional subpoenas Overnight Defense & National Security — Presented by AM General — Pentagon officials prepare for grilling Biden nominates head of Africa CDC to lead global AIDS response 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) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel 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.”
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.Don TrumpHow Trump uses fundraising emails to remain undisputed leader of the GOP Donald Trump Jr. joins Cameo Book claims Trump family members were 'inappropriately' close with Secret Service agents MORE, Jared KushnerJared Corey KushnerHouse panel tees up Trump executive privilege fight in Jan. 6 probe The Hill's Morning Report - Presented by Facebook - US prepares vaccine booster plan House panel probing Jan. 6 attack seeks Trump records MORE, Paul ManafortPaul John ManafortDOJ investigating one-time Trump campaign adviser over alleged ties to Qatar: report Foreign lobbyists donated over M during 2020 election: report Former Mueller prosecutor representing Donoghue in congressional probes: report MORE, and Russians promising evidence of crimes committed by Hillary ClintonHillary Diane Rodham ClintonDemocrats worry negative images are defining White House Heller won't say if Biden won election Whitmer trailing GOP challenger by 6 points in Michigan governor race: poll 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 TrumpIvanka TrumpMary Trump calls Donald Trump Jr. her 'stupidest' relative Trump Tower debt added to watch list as vacancies rise House panel tees up Trump executive privilege fight in Jan. 6 probe 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.”
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 ClintonHas China already won? Budget impasses mark a critical turning point in Biden's presidency Five takeaways from Arizona's audit results 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 PelosiManchin cast doubt on deal this week for .5T spending bill Obama says US 'desperately needs' Biden legislation ahead of key votes Congress shows signs of movement on stalled Biden agenda MORE, Maxine WatersMaxine Moore WatersThe Hill's 12:30 Report - Presented by Facebook - Arizona recount to show Trump's loss by even wider margin Biden criticizes treatment of Haitians as 'embarrassment' The Memo: Biden's immigration problems reach crescendo in Del Rio MORE, Benjamin Cardin, Elijah CummingsElijah Eugene CummingsFormer GOP congressional candidate Kimberly Klacik suing Candace Owens for defamation Former Cummings staffer unveils congressional bid McCarthy, GOP face a delicate dance on Jan. 6 committee MORE, Steny HoyerSteny Hamilton HoyerGOP blocks debt limit hike, government funding Democrats press Schumer on removing Confederate statues from Capitol House Democrats set 'goal' to vote on infrastructure, social spending package next week MORE, Jerry NadlerJerrold (Jerry) Lewis NadlerBiden to raise refugee cap to 125,000 in October Ocasio-Cortez, Bush push to add expanded unemployment in .5T spending plan Angelina Jolie spotted in Capitol meeting with senators MORE, and others. Over in the Senate, Joe BidenJoe BidenFord to bolster electric vehicle production in multi-billion dollar push Protesters demonstrate outside Manchin's houseboat over opposition to reconciliation package Alabama eyes using pandemic relief funds on prison system MORE, Charles SchumerChuck SchumerObama says US 'desperately needs' Biden legislation ahead of key votes Congress shows signs of movement on stalled Biden agenda Schumer gets shoutout, standing ovation from crowd at Tony Awards MORE, Richard DurbinDick DurbinThe Hill's Morning Report - Presented by Alibaba - Democrats stare down 'hell' week Biden sidesteps GOP on judicial vacancies, for now Democrats urge Biden to go all in with agenda in limbo MORE, Dianne FeinsteinDianne Emiel FeinsteinFederal watchdog calls on Congress, Energy Dept. to overhaul nuclear waste storage process Senate advances Biden consumer bureau pick after panel logjam Republicans caught in California's recall trap MORE, Patrick LeahyPatrick Joseph LeahyPhotos of the Week: Renewable energy, gymnast testimonies and a Met Gala dress Senators denounce protest staged outside home of Justice Kavanaugh Al Franken on another Senate run: 'I'm keeping my options open' MORE, Robert MenendezRobert (Bob) MenendezBiden, don't punish India Democrats reject hardball tactics against Senate parliamentarian Biden threatens more sanctions on Ethiopia, Eritrea over Tigray conflict 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.