Be­ware the coverup

The Washington Post Sunday - - SUNDAY OPINION - BY RAN­DALL D. ELIASON

It was a dizzy­ing week for spe­cial coun­sel Robert S. Mueller III’s in­ves­ti­ga­tion. The elec­tion is over, and af­ter more than a year of hag­gling, Mueller fi­nally re­ceived writ­ten an­swers from Pres­i­dent Trump — not as good as tes­ti­mony or a live in­ter­view, but bet­ter than noth­ing. With th­ese mile­stones be­hind him, it feels as though Mueller is rapidly mov­ing to­ward a res­o­lu­tion of his ul­ti­mate ques­tions: What were the Trump cam­paign’s ties to Rus­sia, and were any of them crim­i­nal?

The lat­est de­vel­op­ment was Thurs­day’s guilty plea by Michael Co­hen, the pres­i­dent’s for­mer per­sonal lawyer, who ad­mit­ted to ly­ing to Con­gress about Trump’s ef­forts to de­velop a 100-story tower in Moscow. Ne­go­ti­a­tions over the project took place dur­ing the spring of 2016, just when Trump was lock­ing up the Repub­li­can nom­i­na­tion. But Co­hen had told Con­gress the deal was aban­doned in Jan­uary, be­fore the Iowa cau­cuses.

Co­hen was the lat­est in a string of Trump cam­paign of­fi­cials — in­clud­ing for­mer na­tional se­cu­rity ad­viser Michael Flynn and for­mer ad­viser Ge­orge Pa­padopou­los — to plead guilty to ly­ing about their con­tacts with Rus­sians. When pros­e­cu­tors see peo­ple ly­ing to in­ves­ti­ga­tors, the ob­vi­ous ques­tion is: What are they try­ing to hide? As Mueller’s in­quiry en­ters the fi­nal stages and pre­pares to an­swer that ques­tion, there are two main pos­si­bil­i­ties.

The first is that Trump of­fi­cials con­spired with Rus­sians in il­le­gal ef­forts to af­fect the 2016 elec­tion and then lied to con­ceal their Rus­sian ties. This would be the grand con­spir­acy, or “col­lu­sion,” that has al­ways been the cen­tral ques­tion in Mueller’s in­ves­ti­ga­tion. It would mean, for ex­am­ple, charges that mem­bers of the cam­paign know­ingly col­lab­o­rated with for­eign agents in an ef­fort to dam­age Hil­lary Clin­ton by il­le­gally de­ploy­ing stolen Demo­cratic emails dur­ing the fall of 2016. Mueller’s ap­par­ent re­cent fo­cus on pos­si­ble con­nec­tions be­tween Wik­iLeaks, Ju­lian As­sange and Trump co­horts such as Roger Stone seems di­rected to­ward in­ves­ti­gat­ing whether there was any such con­spir­acy.

But executing a com­plex crim­i­nal con­spir­acy with for­eign ac­com­plices would re­quire a level of so­phis­ti­ca­tion and abil­ity that was not gen­er­ally on dis­play in the Trump cam­paign. It re­mains to be seen, but the cam­paign’s doc­u­mented con­tacts with Rus­sians may prove to have been naive, bum­bling, reck­less, sleazy, un­pa­tri­otic or some com­bi­na­tion thereof — but not crim­i­nal.

Which leads us to the sec­ond pos­si­bil­ity: The pres­i­dent and his as­so­ciates have lied about con­tacts with Rus­sia not be­cause they were il­le­gal but be­cause they would have been po­lit­i­cally dis­as­trous. Af­ter all, stand­ing alone, it’s not il­le­gal for Trump to pur­sue a brand­ing deal in­volv­ing a tower in Rus­sia, even while run­ning for pres­i­dent. It’s not even nec­es­sar­ily il­le­gal to meet at Trump Tower with Rus­sians who prom­ise com­pro­mis­ing in­for­ma­tion about your op­po­nent (de­pend­ing on what, if any­thing, was agreed upon or done as a re­sult of the meet­ing). The pres­i­dent him­self has re­peat­edly and em­phat­i­cally de­nied any con­nec­tions to Rus­sia but, even if some of those state­ments are un­true, ly­ing to the pub­lic or the press is not il­le­gal. If politi­cians could be jailed for that, we might as well just erect bars around the Capi­tol build­ing and call it a day.

But news that, dur­ing the Repub­li­can pri­maries, Trump was ac­tively pur­su­ing busi­ness ne­go­ti­a­tions with our global ad­ver­sary would have been po­lit­i­cal dy­na­mite. Re­ports of events such as the Trump Tower meet­ing would have con­tra­dicted Trump’s claim that he had no Rus­sian ties and fu­eled con­cerns that Moscow might have some lever­age over the pres­i­dent. And any sug­ges­tion of pos­si­ble com­plic­ity with Rus­sians threat­ened to un­der­mine the le­git­i­macy of his elec­tion — one thing that Trump clearly can­not tol­er­ate.

Dur­ing his guilty plea, Co­hen said he lied to Con­gress about the Moscow real es­tate deal to be con­sis­tent with Trump’s “po­lit­i­cal mes­sag­ing.” Oth­ers al­ready charged or yet to be charged may have lied for the same rea­son: not to con­ceal other crim­i­nal con­duct, but to shield the pres­i­dent and his ad­min­is­tra­tion from the po­lit­i­cal con­se­quences of the truth.

If it’s pri­mar­ily about the coverup, then one ques­tion be­comes who else was in­volved. Did the pres­i­dent or other ad­min­is­tra­tion of­fi­cials di­rect Co­hen or oth­ers to lie? The pres­i­dent’s tweets them­selves may not be crim­i­nal, but any­one who en­cour­aged or in­structed oth­ers to lie could be im­pli­cated in a coverup con­spir­acy.

The other ques­tion be­comes the po­lit­i­cal con­se­quences. Mueller is ex­pected to write a re­port de­tail­ing what he has found. Busi­ness and cam­paign ties to Rus­sia that were con­cealed from the pub­lic may fall short of crim­i­nal con­duct but still yield po­lit­i­cally dis­as­trous re­sults for Trump.

But as far as crim­i­nal charges are concerned, Mueller’s in­ves­ti­ga­tion may well end not with charges of an in­ter­na­tional con­spir­acy but, in­stead, with a num­ber of Trump as­so­ciates con­victed on charges of ly­ing about Rus­sia for po­lit­i­cal rea­sons. It’s com­mon for de­fen­dants to be con­victed for cov­er­ing up con­duct that was not nec­es­sar­ily il­le­gal — just ask Martha Ste­wart or the freshly par­doned Lewis “Scooter” Libby.

In Wash­ing­ton, of all places, peo­ple should know that, some­times, it’s the coverup that gets you. Ran­dall D. Eliason teaches white-col­lar crim­i­nal law at Ge­orge Wash­ing­ton Univer­sity Law School. He is a Post con­trib­u­tor and blogs at Side­bars­

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