Wednesday , May 09, 2018 - 4:00 AM
As more details emerge about President Donald Trump's self-described fixer Michael Cohen, the whole mess in which Trump now finds himself may seem inevitable: Lie down with dogs and you wake up with fleas, as Poor Richard's Almanac memorably put it.
But that's wrong. Trump could have avoided a full-on criminal investigation of the lawyer who paid off Stormy Daniels and did who knows what else that seems likely to create further serious legal problems for the president.
We are where we are because of something very concrete Trump did himself a year ago this week: On May 9, 2017, the president fired James Comey, the director of the Federal Bureau of Investigation. With that decision, whether impulsive or considered, Trump sent the country down a path of inquiries that is not merely sordid but seriously jeopardizing to his presidency. And he didn't have to do it.
Ask yourself the classic counterfactual question of what would have happened if Comey had remained in office. Some things would have almost certainly happened anyway: The FBI would have continued to investigate Russian interference in the 2016 election. The Department of Justice would have indicted the Russians involved in the troll farm that manipulated U.S. social media. The Cambridge Analytica-Facebook scandal would have come to light and been the topic of national conversation. Facebook founder Mark Zuckerberg would have testified before Congress about it.
Then there are the maybes. It's possible that former Trump campaign manager Paul Manafort and his business partner Rick Gates would have been swept up in the Russia investigation. On the one hand, they had Russia ties via their Ukrainian escapades, and even a cursory investigation of those ties by the FBI would've revealed the felonies they are now charged with. That's reason to think they would've been arrested without the special counsel investigation that was sparked by Comey's firing.
On the other hand, as a federal judge in Virginia told a member of the special counsel's team last week, there's no apparent link between Manafort's behavior in 2005-07 and the 2016 election. And prosecutors are after Manafort with the apparent goal of pressuring him to testify about Trump. If you accept this description, then you might also reasonably conclude that without the special counsel investigation, there would be no case against Manafort.
And there's the core of what certainly would not have happened had Trump stayed his hand: Without the firing of Comey, there would have been no appointment of Robert Mueller as special counsel. If Comey had remained in office, he would have had every incentive to limit the investigation to whether Russia interfered in the election and whether Trump's campaign had coordinated with that effort. Comey would not have had any reason to go after Trump personally, especially as regards to Cohen.
The same is just not true of Mueller. By firing Comey, then attempting to assassinate his character, Trump made it blatantly clear that he considered any investigation a personal matter, and would treat any investigator as his enemy. As a result, when Mueller stepped into his role, he had to be aware from Day One that Trump would see him as the enemy, would try to pressure him and might well fire him.
That gave Mueller every reason to insulate himself against the possibility of being fired and to build up whatever leverage he could to stop that from happening. That meant genuinely investigating not only possible coordination with Russia, but also all crimes that might be discovered during that investigation — as his letter of appointment expressly authorizes him to do.
And Mueller's incentives go beyond protecting himself and his investigation. The firing of Comey created a whole new potential crime: Obstruction of justice by the president. Why, after all, did the president take the extraordinary step of firing an FBI director who was investigating him? It was and is completely reasonable for Mueller to try to answer that question. And that question only existed because Trump fired Comey.
Trump has said in the past and tweeted recently that there can be no obstruction of justice without an underlying crime. That's false as a legal matter, of course: I can obstruct justice whenever I corruptly interfere with an investigation, regardless of whether the investigation was actually going to find anything. Consequently, Mueller was and is justified in trying to see what motivated Trump, even if Trump didn't knowingly coordinate with Russia and even if no one in his campaign did.
As a political matter, Trump is probably right. If Mueller doesn't produce evidence of coordination, Congress would be unlikely to indict Trump for obstruction of justice in connection with the Comey firing in impeachment proceedings.
But what Trump didn't consider — or at least seems not to have considered — was that a special prosecutor would inevitably broaden his inquiry. The Ken Starr investigation of President Bill Clinton proved that.
Now, as a result of the Comey firing, we face the possibility that the Russia investigation will end up looking more like Whitewater than Watergate. That is, even if it turns out that there's no meaningful evidence of coordination to affect the election — the original investigative subject — the process of investigation may well reveal legal violations unconnected to the original subject. Clinton really did lie under oath, albeit about Monica Lewinsky, not Whitewater. And Cohen really did engage in behavior on behalf of Trump that seems likely to have violated federal law in connection with Daniels, violations that could plausibly be tied legally to Trump himself.
On May 9, then — Comey Firing Day — we should contemplate the vicissitudes of human motives and human consequences. If the Cohen investigation ends up implicating Trump in crimes, he will have no one to blame but himself.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University.
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