Published by The Lawfare Institute
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President Trump could be forgiven if he feels like the walls are closing in on him.
In just the past few days, Robert Mueller’s office apparently has been gearing up for action against Trump associates Jerome Corsi and Roger Stone. Trump’s former campaign chairman, Paul Manafort, has managed—against all odds—to get himself in even deeper trouble. There have been additional revelations about Trump’s central role in hush-money payments to Stormy Daniels. And on Thursday came the announcement that Cohen had reached an additional plea deal, this time not with the U.S. Attorney’s Office for the Southern District of New York and not about campaign finance matters but with Mueller and about something very collusion-y involving Russia and the Trump Organization.
No, this isn’t the collusion plea. The plea is not about hacked emails or the social-media conspiracy of the Internet Research Agency. As of this writing, Trump has not tweeted “NO COLLUSION!” since the charges were announced.
But the tweet, when it inevitably comes, will ring a bit hollow, because the new charges are not not a collusion plea either. In effect, Cohen admitted in court on Thursday that even as Russian operatives were hacking Democratic emails and getting ready to dump emails through Wikileaks, even as Trump was publicly praising Russian strongman Vladimir Putin, even as the Trump Tower meeting involving Donald Trump Jr. took place in the summer of 2016, the Trump Organization—with Trump and his family very much in the know—was negotiating to build a Trump Tower in Moscow. The Trump Organization was negotiating—or, at least, trying to negotiate—this deal with the Kremlin itself. And Cohen has admitted that he lied to Congress about this history to protect Trump politically.
Before we dive into the weeds, let’s pause a moment over this. Because in important respects, the legalities—or illegalities—at issue here are secondary points. The primary point is that this is all utterly unacceptable. That a large swath of the public, and the legislative branch, has chosen to accept it does not make it more reasonable that a man seeking to be president of the United States would at the same time publicly cozy up to a foreign dictator and negotiate with his regime over a potential business opportunity—and then cover it all up. The story is likely to get worse. As this article was about to go to publication, Anthony Cormier and Jason Leopold broke in BuzzFeed News that the Trump Organization planned to gift Vladimir Putin a penthouse suite at Trump Tower Moscow:
President Donald Trump’s company planned to give a $50 million penthouse at Trump Tower Moscow to Russian President Vladimir Putin as the company negotiated the luxury real estate development during the 2016 campaign, according to four people, one of them the originator of the plan.
Two US law enforcement officials told BuzzFeed News that Michael Cohen, Trump’s personal lawyer at the time, discussed the idea with a representative of Dmitry Peskov, Putin’s press secretary.
The details of Cohen’s plea, to which we now turn, do not soften the reality at all.
Here is a summary of the material released in connection with the agreement, as well as some analysis of it all.
The plea was entered in the U.S. District Court for the Southern District of New York, as was Cohen’s earlier plea. But unlike the earlier case, this case was brought by Mueller’s office, not that of the U.S. attorney. Cohen pleaded guilty to one count of making false statements to Congress in violation of 18 U.S.C. §1001(a)(2), which prohibits “knowingly and willfully” making any “materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” (Cohen previously pleaded guilty to charges of tax evasion, bank fraud and campaign finance violations in connection with payments to the actress known as Stormy Daniels, along with Karen McDougal.)
The information opens with a description of Cohen’s employment for a “Manhattan-based real estate company”—referred to as the “Company” in the criminal information, and clearly the Trump Organization. He worked, in part, as an attorney for “Individual 1,” the company’s owner, whom Cohen identified in court as Donald Trump. This is the same language used in Cohen’s previous plea agreement—making this the second time this year that the president of the United States has been referred to in public criminal court filings as “Individual 1.”
According to the criminal information, which Cohen now admits to be true, Cohen lied in testimony before both the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence regarding the Trump Organization’s efforts to build a Trump Tower Moscow (which the information refers to as the “Moscow Project”).
In August 2017, the information states, Cohen submitted a letter to the House and Senate committees regarding the Moscow Project, stating that the project was “abandoned” in January 2016 and that he did not discuss it extensively within the Trump Organization. Cohen said he had discussed the project with Trump only three times. He further stated that he never planned to travel to Russia for the Moscow Project nor planned to ask Trump to travel there. And, Cohen told Congress, though he had reached out to “the Press Secretary for the President of Russia” regarding the proposal, he did “not recall” receiving any response.
But these statements were all false, Cohen has now admitted. What actually happened, according to the criminal information, is remarkable.
The Moscow Project did not, in fact, end in January 2016. Cohen discussed the deal with Russian-born businessman and Trump associate Felix Sater as late as June 14, 2016, the same week that Donald Trump Jr., Jared Kushner and Manafort met in Trump Tower with a Russian lawyer who had promised dirt on Hillary Clinton. And Cohen spoke to others within the Trump Organization more extensively than he had represented to the committees. Specifically, the information describes, Cohen spoke to Trump about the activities on more than the three occasions he had represented, and he briefed Trump family members within the company about the effort as well.
What’s more, Cohen and Sater—in contrast to what Cohen told Congress—repeatedly discussed the possibility of Cohen traveling to Moscow, and Cohen asked Trump about traveling to Russia for the Trump Tower project. Indeed, he “asked a senior campaign official about potential business travel to Russia,” the information states. Cohen and Sater discussed a preliminary meeting between Cohen and unspecified parties in Russia before the Republican National Convention in July 2016, and a trip to Moscow for Trump to meet with individuals Sater described in an email as “the 2 big guys”—presumably including Russian President Vladimir Putin—after Trump became the nominee. Sater also told Cohen that Dmitry Peskov, Putin’s press secretary, wanted Cohen to attend the annual St. Petersburg economic forum as Peskov’s guest.
Third, the information says that Cohen lied when he said he had no recollection of “any Russian government response or contact” about the Trump Tower Moscow Project. Cohen has now admitted that he knew that Peskov’s assistant had responded, and Cohen had spoken to a staffer in Peskov’s office. On a phone call with the assistant, Cohen asked for assistance seeking land approvals and financing for the project. The next day, Sater asked Cohen for a phone call, saying “it’s about [the President of Russia] they called today.”
Finally, the information states that
COHEN made the false statements to (1) minimize links between the Moscow Project and Individual 1 and (2) give the false impression that the Moscow Project ended before “the Iowa caucus and … the very first primary,” in hopes of limiting the ongoing Russia investigations.
Standing before the judge Thursday morning, Cohen stated, “I made these statements to be consistent with Individual-1’s political messaging and to be loyal to Individual-1.”
The account of Cohen’s conduct in the criminal information tracks closely with a May 2018 report by BuzzFeed News Jason Leopold and Anthony Cormier on the Trump Tower Moscow project. Politico suggested Thursday, almost certainly correctly, that the person identified as “Individual 2” in court documents is Sater, the Russian-born businessman and former Trump associate whom Cormier and Leopold report was intimately involved in efforts to build Trump Tower Moscow. The only major piece of the story included in the criminal information that is missing from the May Buzzfeed article is the fact that Cohen successfully connected with Peskov’s office when he sent a blind email to Peskov’s general address for press inquiries.
Cormier discussed the latest developments on a special edition of the Lawfare Podcast Thursday morning:
As with all major developments in the Mueller probe, the latest Cohen plea leaves a great deal unsaid—and raises a lot of questions. Is this a tangent from the mainstream of the investigation of Russian interference in the 2016 election or is it directly related? Does the matter implicate the president himself in any way (though there is nothing illegal about seeking to build a building in Moscow or soliciting Russian government help to do so)? Or is the big news simply that Cohen lied about the history? Answers will have to await further developments, but a number of observations are possible at this stage.
One striking feature about Cohen’s plea is how dramatically his conduct differs from that of another defendant in the Mueller investigation, who also is supposedly cooperating: Manafort. Just this week, the special counsel’s office dramatically broke off Manafort’s cooperation agreement, charging in a court filing that Manafort had violated the agreement’s terms by repeatedly lying to investigators even after pleading guilty. Cohen, in contrast, appears to be a model cooperating witness. According to the plea agreement, he reached a proffer agreement with Mueller’s team on Aug. 7, 2018—two weeks before he pleaded guilty to fraud and campaign finance violations on Aug. 21. Together with the seven proffer sessions listed in the plea agreement, that suggests a posture of eager cooperation by Cohen.
Second, the criminal information describes multiple interactions between Cohen and Trump regarding the Moscow Project—and in every case it specifies Cohen’s actions but omits Trump’s response. Most prominently, the document states that “COHEN asked Individual 1 about the possibility of Individual 1 traveling to Russia in connection with the Moscow Project.” Presumably, this is not because Mueller lacks information about what Trump did or said: With Cohen cooperating, there is no reason to imagine that he would have given the special counsel’s office information about only his side of the conversation. There is also no reason to expect that Mueller’s office wouldn’t have sought detailed information about these interactions. In other words, Mueller almost certainly knows a great deal more about what Donald Trump did and said than is included in this document. And that means that Mueller knows what Trump did and what role he played in this matter—and Trump and his lawyers know that Mueller knows this.
Third, notwithstanding the omission of those few key details, the court documents released Thursday continue Mueller’s trend of using “speaking indictments.” Although the document here is a criminal information, rather than an indictment, the filing is factually rich and tells a story in a fashion that seems designed to inform the public. As former federal prosecutor Ken White, now a defense attorney, noted on Twitter, this deal will have almost no impact on the amount of time Cohen serves in prison. Cohen was already cooperating. So there was no screaming need to reach an additional deal:
Well, normally a federal prosecutor WOULDN'T bother with a plea that has no impact. But here, the impact is telling the story of the investigation as a whole, and promoting the case that the entire Trump Organization was lying about its degree of involvement with Russia. /3— OkayMaybeItsRICOHat (@Popehat) November 29, 2018
Fourth, unlike the admissions in Cohen’s previous guilty plea, which directly implicated the president in the campaign finance violations to which Cohen was pleading, there is no obvious criminal exposure for Trump inherent in the charges. According to the criminal information, Cohen “discussed the status and progress of the Moscow Project” with Trump “on more than … three occasions,” and he had at least one conversation with Trump about the possibility of Trump’s “traveling to Russia in connection with the Moscow Project.” While there are many reasons to be alarmed about a candidate for president of the United States, soon to be designated the presidential nominee of a major political party, contemplating a significant real estate deal in the capital of a hostile foreign power, that in and of itself does not constitute criminal behavior.
That said, there are certainly potential legal pitfalls for Trump here. Consider ABC’s report Thursday morning that “President Trump was asked about the Trump Tower Moscow project among a list of written questions by special counsel Robert Mueller.” The New York Times reported in April that, according to Trump’s legal team, one of the questions Mueller was interested in was “What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?” The president submitted written answers to Mueller on Nov. 20. The seven proffer sessions described in the plea agreement took place from August 2018 through Nov. 20; the latter date may or may not be a coincidence. It is certain, in short, that Mueller had a significant amount of information about Trump Tower Moscow from Cohen before the president submitted his responses. And it is possible that Mueller held onto the plea deal with Cohen until the president submitted his answers. If that is the case, the president’s legal team has no one to blame but themselves; the fact that Cohen was meeting Mueller was reported as early as September.
The president’s lawyers have actually expressed worry that Mueller was trying to catch Trump unawares by waiting on the plea deal. In a story heavily sourced to the president’s lawyers, the New York Times reports that Trump’s team is worried that Mueller may have been “waiting for the president to explain his understanding of events before presenting evidence to the contrary to show that he lied.” Yet the Times also reports that, according to Rudy Giuliani, Trump’s answers to the special counsel were consistent with the criminal information against Cohen. Said Giuliani: “The president said there was a proposal, it was discussed with Cohen, there was a nonbinding letter of intent and it didn’t go beyond that.” Then again, the president also criticized Cohen as “weak” and suggested that he was “lying … in order to get a reduced sentence” after news of the plea deal broke.
The two stories—that Cohen is lying and that the president’s answers are consistent with the plea agreement—can be reconciled only if the president’s answers are as vague as Giuliani’s summary of them. After all, if Trump has admitted to everything that Cohen testified to, then Cohen is not lying—by the president’s own account. What’s more, any admission of Cohen’s accuracy on the president’s part is a substantial deviation from what he has already told the public about his business ties to Russia:
Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA - NO DEALS, NO LOANS, NO NOTHING!— Donald J. Trump (@realDonaldTrump) January 11, 2017
Fifth, beyond the president himself, Cohen’s new plea may also spell potential trouble for those in Trump’s circle who testified before the House and Senate intelligence committees: Mueller has now shown that he considers lies to Congress to be an offense worthy of bringing charges. Notably, NBC reports that the Senate intelligence and judiciary committees are “combing through witness testimony for possible misleading or untruthful statements.” And the soon-to-be chairman of the House intelligence committee, Rep. Adam Schiff (D-Calif.), responded to the revelation that Cohen had lied by noting that “we believe other witnesses were also untruthful before our committee.”
Schiff has already promised to use his chairmanship to dig deeper into what he believes was untruthful testimony by witnesses. This is a sharp contrast from the current Republican leadership of the committee, which has displayed a notable lack of interest in pursuing such leads. As a result, the majority looks pretty silly in the wake of the Cohen plea. The majority’s final report on Russian election interference, released in March, tracks closely with Cohen’s original story about the failure of the Trump Tower Moscow project—a story that, as of Thursday’s plea, Cohen has admitted was false.
Sixth, as we noted above, Cohen’s plea deal raises another significant question: To what extent, if at all, does the story of Trump Tower Moscow intersect with the larger story of collusion? While the Trump Tower Moscow saga doesn’t involve hacking or promises of “dirt” on Hillary Clinton, it does involve repeated efforts by Trump associates to get in touch and make deals with high-level Russian officials, including Putin himself—efforts that apparently were reciprocated to some extent. If direct contacts between the Trump team and Russian officials or representatives have long been unclear, this latest activity may provide that missing piece of the puzzle.It’s clear that the Russian government did its best to reach out to the Trump campaign on many different fronts, from the Guccifer 2.0 cutout to Donald Trump Jr.’s meeting with a Russian delegation in Trump Tower New York, to the approaches to George Papadopoulos and Carter Page. Perhaps, from the Kremlin’s perspective, the “Moscow Project” was just one more parallel track through which to penetrate the campaign and gauge its friendliness to Russian assistance in the election.
There is one other reason to suspect that Trump Tower Moscow might be closely tied to the larger collusion investigation: The people working on this deal very clearly had the election on their minds. We don’t just know this because Cohen admitted it in explaining why he lied to Congress. In November 2015, according to emails published in the New York Times, Sater wrote to Cohen, “Our boy can become president of the USA and we can engineer it. I will get all of Putins [sic] team to buy in on this, I will manage this process.”