Last night, BuzzFeed News published evidence that Donald Trump actively instructed his ex-personal counsel Michael Cohen to lie to Congress about the Trump Tower Moscow project. If you woke up to a timeline full of Twitter Lawyers screaming about subornation of perjury and you aren’t quite sure what it means, here’s what you need to know.
In simple terms, subornation of perjury is the crime of coercing another person into committing perjury. There’s no subornation of perjury without perjury itself, so it’s important to understand the underlying crime first.
Most people correctly associate perjury with lying in a court of law, but the full definition is much broader. Anyone who swears an oath that includes the words “under penalty of perjury” and proceeds to make statements they know to be false is committing perjury. Thus, everything from making false declarations on your tax forms to lying to a judge counts as perjury, and can be prosecuted accordingly. Under U.S. law, perjury and subornation thereof are punishable by fines and/or up to five years in prison.
So Trump made his lawyer lie to Congress in order to obscure the extent of his Russian business ties. Bingo, that’s subornation of perjury, which is a felony—and felonies lead straight to impeachment, right?
Not quite. While Cohen did plead guilty to lying about the Moscow project in November 2018, he wasn’t charged with perjury; his crime was a violation of the federal false statements statute. There’s a small but crucial distinction: perjury is reserved for cases when someone knowingly lies under oath, while the federal false statements statute applies to anyone who knowingly makes “materially false, fictitious, or fraudulent statement[s] or representation[s]” in dealings with the federal government, even if no oath was sworn. This means that, oath or no oath, lying before a Congressional subcommittee is a crime—but since Cohen didn’t lie under oath, Trump didn’t suborn perjury in this particular case.
Whether or not this week’s revelation lands Trump with subornation of perjury charge (it almost definitely won’t) matters less than the broader implications of his behavior. Telling your personal attorney to lie to Congress for you is pretty bad, but getting caught is infinitely worse—and just about everyone knows it. House Intelligence Committee chairman Rep. Adam Schiff (D-CA) announced yesterday that his committee will be launching their own investigation; just this week, Attorney General William Barr stated that a president coercing someone to make false statements counts as obstruction of justice:
From a legal standpoint, what comes next depends on the other contents of the emails, texts, and memos that federal prosecutors are combing through in their investigation of Trump’s Russia ties. For now, given what we know about Donald Trump—and that nobody at the White House is exactly denying it—it seems unlikely that Michael Cohen is the only person he’s forced to lie for him.