BuzzFeed News on Thursday evening reported that Donald Trump's personal lawyer Michael Cohen has told special counsel Robert Mueller that the president personally instructed Cohen to lie to congressional investigators to downplay Trump's negotiations for, and involvement in, a Moscow building project.
According to the report, which NBC News has not confirmed and Trump's lawyer has said is not true, Cohen was ordered to give false information: That the project did not last as long as it actually did.
Rep. Adam Schiff, D-Calif., tweeted: "The allegation that the President of the United States may have suborned perjury before our committee in an effort to curtail the investigation and cover up his business dealings with Russia is among the most serious to date…"
If the report, which was attributed to two federal law enforcement officials involved in an investigation of the matter, is true and if Trump ordered Cohen to lie to Congress, that's bad for Trump. But it doesn't mean Trump necessarily "suborned perjury before (a congressional) committee," at least as that particular crime is defined in federal law.
The two main perjury statutes are 18 USC § 1621, and § 1623. The first, Section 1621, criminalizes material false statements, under oath, in federal official proceedings. Section 1621 really contains two offenses, one for testimony, which requires an oath, and the other for written statements made under penalty of perjury.
The second perjury statute, Section 1623, prohibits material false statements under oath in federal court proceedings.
Subornation of perjury, as that crime is defined in the U.S. Code (18 USC § 1622), criminalizes "(procuring) another to commit any perjury." An underlying perjury is required to convict someone of suborning perjury, under federal law.
Cohen has not pleaded guilty to perjury, however.
Cohen pleaded guilty to tax evasion, bank fraud and campaign finance violations, charges that were brought by the U.S. Attorney's Office for the Southern District of New York. More recently, Cohen pleaded guilty to lying to Congress, a single count charged by the special counsel. That crime is defined as making a materially false, fictitious or fraudulent statement or representation in a matter within the jurisdiction of the legislative branch, pursuant to 18 USC § 1001(a)(2).
So far, it appears that Trump could not have "suborned perjury," because Cohen has not been convicted of "perjury." But that's assuming only crimes to which Cohen has pleaded guilty to date. It may be that he did commit perjury that is not yet known to the public, or possibly someone else committed perjury at the direction of Trump.
If the president directed or ordered Cohen's false statements that formed the basis of his guilty plea, and that is not subornation of perjury, could it still be a crime?
Yes. It could potentially be a number of other federal crimes.
For example, ordering someone to lie to Congress, depending on the facts, could potentially fall within the definition of obstruction of justice. Several different statutes make up the crime of obstruction, including witness tampering (18 USC § 1512), or obstruction of congressional or administrative proceedings (18 USC § 1505).
If the report is true, perhaps an easier case to make might be that Trump aided and abetted, or conspired to commit, the crime of false statements to which Cohen has already pleaded guilty.
Under the federal aiding and abetting law, a person who "willfully causes" another to commit the crime of false statements may be liable as if they committed the act themselves. Similarly, conspiracy is defined as an agreement to commit an unlawful act. If two or more persons conspire to give false statements, and one or more of the persons give those false statements, each conspirator could be found guilty of conspiracy.