BuzzFeed’s story depends on Trump being heard on tape – Washington Examiner

BuzzFeed’s extraordinary report last night suggests that President Trump conspired to induce perjury and obstruct justice. It has excited many Democrats. But even if BuzzFeed is correct in its central assertion — that two federal law enforcement sources say Trump told his former attorney, Michael Cohen, to lie to Congress — I’m not convinced it’s a major problem for the president. Unless, that is, law enforcement has audio recordings of Trump or his most inner circle speaking to that effect.

The key here is the burden of proof. According to BuzzFeed, he “personally instructed [Cohen] to lie” to Congress about when the Trump organization ended its effort to build a hotel in Moscow. If this is true, Trump would appear to be guilty of at least three federal criminal offenses: obstruction of justice, perjury, and conspiracy.

But it’s not enough for prosecutors to believe this to be true; they must be able to prove it. And from BuzzFeed’s report at least, it’s not at all clear if they have the means of doing so.

BuzzFeed claims that emails and interviews from Trump organization staffers have corroborated investigators’ belief in Trump’s guilt, but that’s unlikely to be enough to prosecute. What investigators need is a forensic, unimpeachable link that ties Trump to an unlawful conspiracy.

I sincerely doubt that emails or other notes would be enough because Trump’s defense team could allege someone else sent those notes without Trump’s knowledge or without his approval. But the biggest weakness here is Cohen himself. Whether you believe Cohen’s cooperation with the government is an act of contrition or an act to save himself from even more prison time, Cohen is ultimately a weak prosecution witness. He is a proven liar with an obvious conflict of interest. Any defense team would have a field day with Cohen. They would suggest that everything he says is about saving himself by offering up a bigger fish.

A winning prosecution would need forensic evidence that someone very close to the president, such as his son-in-law Jared Kushner or son Donald Trump Jr., was engaged in a conspiracy on the president’s behalf. Indeed, prosecutors would likely decline the case on the basis that the presumptive harm to the nation would outweigh the low likelihood of conviction.

This is not to say that Trump is out of the woods. He may face significantly more damaging revelations in relation to Russia in the months ahead.