Lies, Damn Lies, and Prosecutions
In our public discourse, the modest dictates of truth-telling count for less and less; indeed, the business models that govern our social mediasphere tend, if anything, to actively reward and weaponize the promulgation of conspiracy theories, misconstrued policy, and other brands of venal prevarication. Our legal system, however, operates on a strikingly different calculus. As Special Counsel Robert Mueller’s investigation of charges of Russian interference in the 2016 presidential election and other legal trespasses allegedly committed by leading lights in the Trump campaign has demonstrated again and again, those who chose to actively conceal or obstruct the truth in the face of a government investigation are ticketed for serious trouble with the law. Mueller’s prosecutors have drawn these key lines of inquiry and, so far, Trump’s enablers have fared very badly.
Within the past few weeks alone, we learned that Paul Manafort’s plea agreement was jettisoned by Mueller’s prosecutors because he told “multiple discernible lies” regarding his contacts with Trump’s team and foreign officials; Michael Cohen copped to lying to Congress about Trump’s business contacts with Moscow; and Michael Flynn’s lies about his dealings with Russia while he was on Team Trump were catalogued in a sentencing memorandum filed by Mueller’s special counsel office.
These events compel a renewed understanding and appreciation for the role truth plays in the investigation and enforcement of our criminal laws. And Donald Trump, who has largely made a career of misrepresenting the true scale of his achievements in the business and political world alike, is perhaps uniquely ill-suited to meet the empirical rigors that govern this world. It will, however, be the world where his conduct is judged and that will ultimately define his legacy.
As a federal prosecutor for more than twenty-five years, I know that prosecutors operate within a framework of black-and-white morality. Their aim is simply to discern whether a crime has been committed and who did it. Their ultimate burden—proof beyond a reasonable doubt—leaves no room for falsification or error of fact. There are no rich, no poor, no Democrats and no Republicans. In this arena, truth is the sole coin of the realm. Prosecutors simply have no time or use for people who can’t or won’t relate the facts of their conduct truthfully. None of this bodes well for the president.
Those who choose to answer the inquiries of federal investigators have a unitary choice: convey truthful information or risk criminal prosecution for lying. Our criminal justice system can’t function any other way. Lying to federal investigators, Congress, or a bank each constitute separate federal crimes. Manafort, Flynn, and Cohen have all learned this lesson. Mueller’s team of prosecutors have sent a clear signal that they won’t tolerate lies and they’ll hold the principal figures in their investigation accountable for them. It naturally follows that continued attempts at fabrication by the president and his retinue of enablers will be the surest path to his downfall.
Trump’s relationship with the truth has always been transactional and fleeting.
Most of us live in a world where facts and truth actually matter. How long could you survive if your business partners could not rely on your representations? Would your friends stand by you if you couldn’t be trusted to level with them? Ordinary Americans won’t risk the reputational harm that comes with lying. But that’s never been Trump’s real-life experience. His relationship with the truth has always been transactional and fleeting.
When fudging the books to understate your income can substantially reduce your tax liability, why not falsify? When fibbing about the true value of your real estate holdings makes it more likely that banks will loan you more money, lie away. When falsely quantifying the number of condos sold at one of your properties brings more future purchases and more revenue, double down with the untruths. When grossly overstating the education and benefits you will provide at your for-profit university that will potentially make you millions, just make it all up on the fly. Trump’s brand of habitual dishonesty has became a de facto business plan because the consequences of his failure to tell the truth in the past have cost him, at most, a few shillings. In Trump’s ethics-free world, you pay the speeding ticket and move on to the next mark. Caveat Emptor has been both his bible and his cudgel. Not so for the prosecutors on Mueller’s team, whose bible is the federal criminal code in all its black-and-white splendor.
Prosecutors will demand the complete and unvarnished truth about the Trump campaign’s contact and coordination with Russian officials; Trump’s version will be critically evaluated through the sole prism of objective truth. What actually brought about the fateful June 2016 Trump Tower meeting is vitally important to Mueller’s team; any attempt to misrepresent its purpose will be viewed harshly. And the existence of concealed financial relationships with Russian officials—together with the broader initiatives that motivated such contacts—have extraordinarily significant ramifications. Any purposeful obfuscation of the truth preventing prosecutors from understanding those events fully will bring heavy sanction. Finally, Mueller will demand to know the degree of Trump’s direct participation in hush-money payments to his two alleged paramours late in the campaign; if Trump persists in repeating the series of false statements he has previously made to the public about those events, there will be no option but to find a criminal-law violation. Trump’s history and longstanding habits of prevarication almost ensures that calamity lies ahead.
Mueller is now preparing his report and the final charges against the remaining rogues gallery of Trump’s family, friends, and associates. These final charges will be based, at least in part, upon false statements these associates told to investigators and/or Congress. The report will recount the findings of the special prosecutor and reveal the truths the investigation has uncovered. Given the public disclosures we’ve already seen, as well as the guilty pleas of Trump’s associates and the criminal charges against others, there will be some extremely damaging conclusions about the president and his actions. The primary question that remains is whether the president purposefully and knowingly engaged in and directed conduct that would violate our criminal laws. The special counsel prosecutors will evaluate Trump’s state of mind based upon an antiseptic evaluation of the evidence and the facts available to them.
In other words, as the Mueller investigation continues to circle around the critical and foundational questions of what the president knew and how he’s willfully misrepresented that knowledge, the noose is tightening. And the president is foreclosed by his own history and character from fashioning a defense of his conduct that’s anchored in anything close to the truth.