I examined Whitaker’s testimony last week, after the New York Times reported that President Trump had asked whether U.S. Attorney Geoffrey S. Berman could be un-recused in the Southern District of New York’s investigation of former Trump lawyer Michael Cohen. I found that it’s theoretically possible that Whitaker perjured himself — but probably not for the reasons people think.
The Journal and other news outlets have focused on this comment from Whitaker: “At no time has the White House asked for, nor have I provided, any promises or commitments concerning the special counsel’s investigation or any other investigation.”
Both the Times and the Journal say there is no evidence that Whitaker took any action in response to Trump’s Berman-related musings. If that’s true, it would mean that the only way this was a lie is if Trump or the White House did, in fact, seek some “promise or commitment” about it. In other words, it’s not a lie if Trump merely asked about un-recusing Berman; he would have had to ask Whitaker to promise to make it happen.
The other big thing to remember about this quote is that it wasn’t just something Whitaker said off the cuff during an exchange with a lawmaker. It was part of his prepared opening statement. It was something that probably had been reviewed and parsed beforehand to make sure it was technically true. That doesn’t mean it can’t be a lie, but it would represent a colossal foul-up to prepare such a lie and deliver it. Much more likely is that Whitaker chose his words carefully, even as he wanted to leave a perhaps misleading impression.
A more significant exchange, to my mind, is one the Journal alludes to later in the story. It’s this one with Rep. David N. Cicilline (D-R.I.):
CICILLINE: Mr. Whitaker. Did the President lash out at you after Michael Cohen’s guilty plea for lying to Congress about a Trump organization project to build a tower in Moscow?WHITAKER: The President specifically tweeted that he had not lashed out.CICILLINE: Did -- did -- I’m asking you, Mr. Whitaker. Did the President lash out at you? Not asking what he tweeted. I don’t have a lot of confidence in the veracity of his tweets. I’m asking you under oath.WHITAKER: Congressman, that is based on an unsubstantiated ...CICILLINE: Sir, answer the question yes or no, did the President lash out to you about Mr. Cohen's guilty plea?WHITAKER: No, he did not.CICILLINE: And did anyone from the White House or anyone on the President's behalf lash out at you?WHITAKER: No.CICILLINE: Mr. Whitaker, did the President lash out to you on or about December 8th, 2018, to discuss a case before the Southern District of New York where he was identified as Individual-1?WHITAKER: No, Congressman.CICILLINE: Did anyone on the President’s behalf either out -- inside the White House or outside the White House contact you to lash out or to express dissatisfaction?WHITAKER: Did they contact me to lash out?CICILLINE: Yes, did they reach out to you in some way to express dissatisfaction?WHITAKER: No.
This refers to a CNN report that Trump had “lashed out” at Whitaker over Cohen’s guilty plea in special counsel Robert S. Mueller III’s Russia investigation. And Whitaker firmly denies that Trump ever “lashed out.” That would be difficult to prove to be a lie, though, because “lashed out” is so subjective.
What’s more interesting is the end of the exchange. Cicilline asks not just whether Trump lashed out but also whether anyone in the White House “contact[ed] you to . . . express dissatisfaction?” And Whitaker says “no."
To believe that’s true, we’d need to believe that Trump talked about getting Berman un-recused from the Cohen inquiry without somehow expressing dissatisfaction. That’s possible, but why else would Trump want that to happen if he wasn’t dissatisfied? The question from there becomes whether Trump actually expressed his ire.
Also complicating this is the jumbled exchange. Cicilline asks both about “lashing out” and expressing dissatisfaction in one question, and Whitaker asks him to clarify that the question is about lashing out. Cicilline says “yes,” but then invokes expressing dissatisfaction again in his question. At that point, Whitaker offers a firm “no.”
Even if Trump did express dissatisfaction, Whitaker could argue that this line of questioning was confusing and that he thought he was responding to the “lashing out” portion of it. That may seem like a generous parse for him, but proving perjury is difficult for a reason. And until we know more about exactly what transpired between him and Trump, it’s difficult to say with certainty that Whitaker is actually in trouble.