We can’t ignore impeachable conduct in plain view

Michael Cohen, President Trump's former personal attorney. (Brendan McDermid/Reuters) (Brendan Mcdermid/Reuters)

By Jennifer Rubin Opinion writer-January 25

This week we witnessed a jaw-dropping affront to the rule of law and a violation of the president’s oath of office. The New York Times reported: “Michael D. Cohen, the former personal lawyer and fixer for President Trump, indefinitely postponed his congressional testimony set for next month, his lawyer said on Wednesday, depriving House Democrats of one of their first big spectacles in their plans to aggressively investigate the Trump administration.” The report continued:

Democrats called the president’s attacks “textbook mob tactics” of coercion. “The most upsetting thing about all of this is the fact that Mr. Cohen was intimidated,” Representative Elijah E. Cummings, Democrat of Maryland and chairman of the House Oversight Committee who had invited Mr. Cohen to testify, said in an interview. “And not only was he intimidated, but he believes his family also has been intimidated and threatened.”

In particular, Trump repeatedly referenced Cohen’s father-in-law (both in a Fox News interview and in a tweet). “Mr. Trump has referenced the Eastern European background of Mr. Cohen’s father-in-law, Fima Shusterman, to imply that Mr. Shusterman has ties to organized crime,” the Times said. “No evidence has emerged to back up that suggestion. Mr. Shusterman was sentenced to probation after pleading guilty in 1993, a year before Mr. Cohen married his daughter, to cashing $5.5 million in checks to evade federal reporting requirements.”

Can the president pardon himself? Legal expert and Post Opinions contributor Randall D. Eliason answers key questions in the Mueller investigation. (Joy Yi, Kate Woodsome, Danielle Kunitz/The Washington Post)

When the president of the United States — who has the power of the FBI and Department of Justice behind him — leaves such hints, the implication is that he can and intends to act in ways that will imperil a witness’s family. (Not a few people have noted the similarity to the scene in “The Godfather: Part II” when Michael Corleone brings in from Sicily the brother of a government witness, thereby making the implicit threat that the brother would be harmed if the witness spilled the beans.)

Renato Mariotti, a former federal prosecutor, said, “There is no good reason for Trump to call out Cohen’s father-in-law. The obvious implication is that Trump wants to intimidate Cohen.” He added, “If I pulled the same stunt when I was a federal prosecutor, I would have been fired.”

So why has this not caused a greater hullabaloo? Constitutional scholar and litigator Larry Tribe said, “It’s emblematic of a larger problem: Shouldn’t ‘high crimes’ (in the Impeachment sense) committed in plain view get at least as much attention as similar abuses committed in the dark and breathlessly unveiled in the form of ‘breaking news’?” He continued, “Many criminal law experts who should know better focus solely and obsessively on the precise language of U.S.C. §1512 (b) [the statute covering witness intimidation]. . . [and] the difficulties of proving the ‘intent’ element of that criminal prohibition beyond a reasonable doubt.” But of course special counsel Robert S. Mueller III in all likelihood will not indict a sitting president, so the real attention should be on whether such action is impeachable. The challenge, Tribe said, is how we “can protect ourselves from the seductively inoculating and anesthetizing effect of drip-by-drip disclosures — like those of Trump’s outrageous witness intimidation vis-a-vis his former fixer Michael Cohen — that generate more yawns than howls and seem unlikely to build up the bipartisan public outrage necessary for the impeachment power to be deployed successfully.”

It is ironic that many former prosecutors, who spent their lives trying to prove facts beyond a reasonable doubt, are imploring the public to look at the bigger, political picture: bullying of witnesses, concealing a business deal with a foreign foe and repeatedly lying to the American people.

As for the Cohen matter, former prosecutor Joyce Vance White said, “Whether technically the crime of intimidation or not, it’s unacceptable conduct for a president. Any effort by Trump to delay or deter Cohen’s testimony before the House by suggesting his family could be put at risk while Cohen is in prison should be beneath the dignity of a president, to say nothing of being a gross abuse of the criminal justice system.” The same could be said of Trump’s other public actions (such as hinting at pardons for witnesses). “It’s no less wrong when the crime is committed in daylight than when it takes place in the shadows,” White said. Congress and voters should take note.

Trump's supporters say 'collusion' can't be prosecuted. They're wrong. (Joy Yi, Kate Woodsome, Danielle Kunitz, Breanna Muir/The Washington Post)