London is a retired partner for the law firm Paul, Weiss, Rifkind, Wharton & Garrison and the author of The Client Decides; he was a principal lawyer for Vice President Spiro Agnew.
The BuzzFeed report that former Trump personal lawyer Michael Cohen has told investigators that, after the election, President Trump instructed him to lie to Congress has raised new calls for impeachment. But impeachment is far from the only concern Trump should consider now.
On one hand, Cohen is merely providing potential testimony of what most keen observers assumed to be true. There could be no doubt that Cohen was still taking orders from the boss when he testified to Congress about a negotiation regarding a Trump real estate deal in Moscow — or that he would do so without first discussing the matter with Trump, his client. Even less surprising were the Trump tweets and current Trump lawyer Rudy Giuliani interviews that called Cohen a liar.
But what is new is the BuzzFeed revelation that Special Counsel Robert Mueller has not just Cohen’s testimony but documentary evidence (the story mentions “internal company emails, text messages, and a cache of other documents”) and witness corroboration that not only the President, but others in his family — specifically his children, Ivanka and Donald Trump, Jr. — knew the details of Cohen’s secret dealings with Russia on behalf of Trump. Therefore, the family members knew his testimony was false and had what BuzzFeed describes as “deep involvement” in the discussions with Russia — a subject they’ve denied in the past. BuzzFeed writes that Cohen had “extensive discussions” with the family members. The outlet’s two unnamed law enforcement sources said he gave them “very detailed updates.” If this is true, it is their criminal exposure that increases the pressure on Trump exponentially.
There are two areas the President needs to worry about:
First is the question, Will Trump’s firm support in the Senate — which is responsible for trying impeachment charges lodged by the House — dissolve because the Senators see this as different? After all, Cohen lied directly to them. At some point, enough of them may conclude that enough is enough.
But the President’s immediate concern is Mueller. This is not like Trump firing of then–FBI Director James Comey, which lawyers can challenge because it was technically within the President’s constitutional power to do so for any reason, good or bad. This is conspiracy and aiding and abetting in the commission of a felony. There can be no argument that the President has the Constitutional authority to conspire to, say, cause somebody to rob a bank — or commit any other felony, such as giving perjurious testimony concerning the President’s conduct.
Don’t forget: While the President may be immune from prosecution while he remains in office, his children are not. Can he politically survive pardons for Donald Jr. and Ivanka? What about his son-in-law Jared? And his ex–campaign chairman Paul Manafort? And possibly even himself? (Though this last one is probably not even legal anyway.)
As the President’s power weakens because of the shutdown, and the Mueller pressure increases, there must be some level-headed people on his team that are considering the advantages of a resignation deal, as Vice President Spiro Agnew took in 1973 when I was his lawyer — and as I wrote the President should consider in August, if it means Mueller would end his investigation. Or failing that, even a non-deal resignation, a la Richard Nixon. Would President Mike Pence emulate President Gerald Ford and pardon his predecessor?
At some point, this for-now President must start to contemplate the future: It is not his back-slapping commentator-supporters or his Mar-a-Lago glad-handers or his Twitter followers who face a term of imprisonment. The longer the President waits, the more evidence piles up, and the tougher it will be to get a deal. Mueller already has a federal grand jury hearing evidence that just received a six-month extension. The President should make his deal before that body completes its work. The Mueller report may accompany a clutch of Mueller indictments.