Alan Dershowitz, a Harvard Law professor who has come to be known for defending President Trump, on Friday said new allegations that the Republican leader told his former personal lawyer to lie to Congress will be decided on four things.
“Recall that one of the grounds on which President Nixon was sought to be impeached was for telling subordinates to lie to the FBI. The evidence of Nixon’s crime was indisputable,” he wrote in a New York Daily News op-ed. “The evidence here does not seem as compelling, based on the BuzzFeed report, but everyone should take a deep breath and wait until all the evidence, including evidence presented by Trump’s lawyers, is in the public record.”
In the meantime, the constitutional and criminal lawyer wants to know if anyone can back up Michael Cohen’s claim that Trump told him to bend the truth. Dershowitz said Cohen’s testimony by itself would not suffice.
“It is extremely unlikely that there are any smoking gun notes from Trump to Cohen explicitly telling him to lie. It is also extremely unlikely that there were any eyewitnesses in the room if and when Trump allegedly instructed his former lawyer to commit perjury. Such conversations, if they occur at all, do not occur in front of witnesses or in writing,” he wrote.
The next step would occur if proof of that conversation was available. Dershowitz, who identifies as a civil libertarian, said he would look at the exact phrasing and words Trump used in his remarks to Cohen.
He said this is critical because there is a “considerable difference between a direct order to lie and vague suggestions about how to frame an answer.”
“Third, if Trump did tell Cohen to lie, was it about a matter that was material to his testimony before Congress? Materiality is an element of perjury and therefore of subornation of perjury and obstruction of justice. Prosecutors would have to prove materiality beyond a reasonable doubt, but it seems likely that materiality could be established if the other elements were present,” he said.
Trump’s attempts to make a business deal with Russia while a candidate was not illegal. However, if he told Cohen to lie about that legal business, it would be illegal.
Finally, Dershowitz said it comes down to whether Trump knew at the time he allegedly told Cohen that things he was saying were untrue. In order for perjury to have been committed, Trump would have had to have known what he was saying was bogus.
Trump has said on numerous occasions that he was not negotiating any deals with Russia in 2015 or 2016, but the Buzzfeed report claims federal law enforcement officials now say the then-billionaire businessman, his daughter Ivanka Trump, and son Donald Trump Jr. had asked Cohen to handle the skyscraper deal and give them regular updates on its progress.
Cohen’s reason for lying about the business deal before the House and Senate Intelligence committees had been unclear.
The new report revealed Trump had pushed Cohen to set up and follow through on a plan to travel to St. Petersburg to meet one-on-one with Russian President Vladimir Putin and get the tower negotiations rolling. The trip never happened.
“Make it happen,” one official reportedly said Trump had told Cohen.
Trump’s company had been in talks with a representative for Putin about giving the Russian leader a $50 million penthouse in Trump Tower Moscow for free. Cohen had discussed the proposal with Putin’s press secretary, Dmitry Peskov.
Then, after the election, Trump allegedly told Cohen to lie about the situation.
Trump’s interference could mean he attempted to obstruct justice by interfering in the FBI and special counsel Robert Mueller’s investigation into his campaign and transition team’s relationships with Russia.
In November, Cohen pleaded guilty to lying before Congress, among other charges.
He is scheduled to testify publicly before the House Oversight Committee Feb. 7.
