By asserting that the government would not be able to “flip” Cohen, Trump invited a question: If the Russia probe is the “witch hunt” the president says it is — and if he is as innocent as he so often proclaims — what incriminating evidence would Cohen have on Trump that would give him leverage to flip?
It was only the latest instance of the president adopting a posture vis-a-vis his legal troubles that is both combative and defensive — and, perhaps unwittingly, seems to assume guilt.
Trump accused the FBI of going rogue by seizing Cohen’s records. He went to court to try to deny investigators access to his communications with Cohen. And he threatened to fire Justice Department officials, protesting overreach. Again and again, many legal experts say, the president has taken the steps of a subject who has something to hide, creating the appearance of a coverup even if there is no crime to cover up.
“I’ve seen criminal defendants do this before,” said Joyce White Vance, a former U.S. attorney in Alabama. “When they speak about topics where other people protest their innocence, these folks have an assumption of guilt.”
“A normal person,” she added, “would say, ‘You can go ahead and search my lawyer’s office, and I’ll give you access to everything’ because they know they didn’t do anything wrong. With Trump, there’s this consciousness that things should remain hidden.”
As Rep. Trey Gowdy (R-S.C.) put it last month after Trump’s then-attorney John Dowd called on special counsel Robert S. Mueller III to end his Russia investigation: “If you have an innocent client, Mr. Dowd, act like it.”
Trump’s desire to shield details of his business dealings and personal life from Mueller and his team of investigators is in keeping with his general instincts to be opaque and impenetrable when it comes to his finances. He was the first major-party presidential nominee in more than a half-century not to release copies of his tax returns before the election; a year and a half later, Trump still has not shared them with the public, citing an IRS audit but providing no evidence that the audit is real.
Trump’s aggression toward Mueller, FBI investigators and anyone else he considers a legal enemy is consistent with his determination over many years to cast himself as a victim of a system — “the swamp,” as he denounces it — run amok.
Alan Dershowitz, a retired Harvard Law School professor and veteran criminal defense attorney, said the president is taking the right approach.
“I tell my innocent clients as well as my guilty clients, act as if somebody can incriminate you,” said Dershowitz, who defends Trump’s legal strategy on cable news shows and has informally discussed it with the president.
“I think any person who is the subject of an investigation should assume that the government may very well flip a witness — and may get him not only to sing but to compose, that is to make up stories, to elaborate, to add,” he added. “Innocence is not enough.”
When President Bill Clinton was under investigation for lying about his affair with White House intern Monica Lewinsky, he and his advisers debated how aggressively to go after independent counsel Kenneth W. Starr. They calculated that attacking Starr made Clinton look guilty but that pulling punches legitimized a probe they felt was expanding far beyond its original mandate to look into the Whitewater real estate controversy.
Lanny Davis, one of Clinton’s legal advisers during this time, said he argued then in favor of attacking Starr. But he said Trump is making “a big mistake” by similarly going after Mueller.
“If in fact he has nothing to worry about on the issue of Russian collusion, which is the big enchilada, then anything he does or says that’s a criticism of Mueller is a huge mistake,” said Davis, arguing that with every outburst Trump risks adding a new exhibit to any obstruction-of-justice case. “Every time that he tweets about Michael Cohen and about flipping and about Mueller and FBI and all of the political rhetoric in his tweets, he is in fact extending the subject matter of the Mueller investigation.”
In his Saturday tweet, Trump argued that some witnesses who “flip” under pressure from the government do so by “lying or making up stories.” He offered no examples but still sowed doubt about the veracity of whatever evidence or accounts former national security adviser Michael Flynn and other cooperating witnesses may have provided to the special counsel.
Because of this “lying” caveat, some Trump allies said they rejected the suggestion that the president’s comment about Cohen’s possible “flip” suggests there is something incriminating needing to be covered up.
“His point was the government will squeeze people, and if they think they’re going to prison, they’ll lie to get out of going to prison,” said Ari Fleischer, a former White House press secretary in the George W. Bush administration. “I think the president was saying, ‘I didn’t do anything wrong, and the only way people would think that is if Michael Cohen were to lie — and Michael Cohen won’t lie.’ ”
Asked to explain Trump’s tweet, White House press secretary Sarah Huckabee Sanders told reporters Monday: “The president’s been clear that he hasn’t done anything wrong. I think we’ve stated that about a thousand times. Beyond that, I don’t have anything to add.”
There is a historical parallel to Trump’s venting. During the 1970s Watergate investigation, President Richard M. Nixon fumed about what he saw as a “witch hunt” and plotted with his advisers on how to thwart investigators, as revealed later in Oval Office audio recordings.
“What’s very peculiar for students of the Watergate era is to see Trump speaking in the same self-incriminating terms publicly. Nixon had enough self-control to only do it privately,” said Timothy Naftali, a historian at New York University and former director of the Richard Nixon Presidential Library and Museum.
Naftali added: “President Trump’s own rhetoric is not helping him exonerate himself. He shouldn’t have to care about whether someone ‘flips’ or not. If you’re innocent of crimes, you shouldn’t worry about what your lawyer tells law enforcement. Similarly, if Richard Nixon had not been worried about the truth, he would not have been suborning perjury.”