Michael A. Cohen

Will Trump take the Fifth Amendment?

(FILES) In this file photo taken on December 16, 2017 US President Donald Trump speaks to the press at the White House in Washington, DC before departing for the Camp David presidential retreat in Maryland. US President Donald Trump commented on recent stock market volatility for the first time on February 7, 2018, suggesting a wild sell-off may be due to good news about the economy."In the 'old days,' when good news was reported, the Stock Market would go up," Trump tweeted. "Today, when good news is reported, the Stock Market goes down." The real estate tycoon suggested that was a "big mistake, and we have so much good (great) news about the economy!" / AFP PHOTO / NICHOLAS KAMMNICHOLAS KAMM/AFP/Getty Images
Nicholas Kamma/AFP/Getty Images
President Trump speaks to the press at the White House on Dec. 16, 2017.

Donald Trump is a liar. He embellishes, exaggerates, and says things that are not remotely correct. Somehow these qualities — which were evident the moment he announced his candidacy in 2015 — did not prevent him from being elected president of the United States.

But as the target of a criminal investigation, Trump will find it much more difficult to outrun his penchant for dishonesty. This week, The New York Times reported that Trump’s lawyers are concerned that the president’s “history of making false statements and contradicting himself” could lead to a perjury charge if he were to consent to an interview with special counsel Robert Mueller.

But oddly, this concern (though legitimate) underplays the larger problem for Trump and the country: There’s pretty much no way he can testify truthfully without incriminating himself.


Consider, for example, what would happen if Trump were asked whether he canned FBI Director Jim Comey because of the FBI’s investigation of his campaign’s possible collusion with Russia. Trump could testify that he fired Comey for other reasons. The problem for Trump is there is plenty of evidence that this is a lie.

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Allegedly, Mueller has a letter drafted by Trump aide Stephen Miller that captured the president’s initial thoughts on why he wanted to get rid of Comey — and it apparently shows he was focused on the Russia investigation. This, of course, is very different from the official rationale put forward by the White House, which is that Comey was let go because of his mishandling of the the Hillary Clinton e-mail investigation.

Then there’s the fact that, in May, Trump publicly acknowledged, in an interview with Lester Holt, that the Russia investigation is indeed the reason he fired Comey.

“When I decided to [fire Comey],” he told the NBC anchor, “I said to myself, you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won.”

Certainly, if Trump insists that Russia had nothing to do with the Comey firing, Mueller’s interlocutors could ask why he was so angry about Attorney General Jeff Sessions decision to recuse himself from the Russia investigation — and why he allegedly asked his White House counsel, Don McGahn, to tell Sessions to reverse his decision. Mueller’s team could ask why he asked Comey in February 2017 that he lay off of Mike Flynn and why he would do that when, according to a Trump tweet from last December, he knew at the time that Flynn had “lied . . . to the FBI.”


One lie will beget even more questions for Trump — and likely more lies.

Trump could of course openly acknowledge that he fired Comey because he wanted to put an end to the Russia inquiry. But this is the problem for Trump: Doing so would be akin to acknowledging that he sought to obstruct justice.

What if Mueller were to ask about allegations that Trump urged former national security adviser Mike Flynn to lie to FBI investigators about his phone calls with Russian Ambassador Sergey Kislyak? If Trump says he never did that, he runs the risk that Flynn has told prosecutors the opposite. If he admits that he gave such instructions to Flynn, well, that’s another piece of evidence for an obstruction charge.

He’s got a similar problem if he’s asked about the meeting his son, Don Jr., had with Russian officials at Trump Tower in the summer of 2016, and the statement he helped draft about it last year, which said it had to do with an adoption issue. If Trump knew that the meeting was actually about Clinton’s e-mails — and Mueller can prove that — a lie could be perjury. Conversely, if Trump says he knew the drafted statement was untrue — and he understood the real reason for the meeting - that is more evidence for a possible obstruction indictment and perhaps even a charge of actively working with a foreign government to interfere in a federal election.

Since Trump can’t know what others in the investigation have told Mueller, any false statement he makes puts him in a possible perjury trap.


But on the flip side, telling the truth offers him no protection.

There is, of course, a constitutional shield that Trump can utilize. He can invoke the Fifth Amendment and refuse to answer questions that would potentially incriminate him. Indeed, one can view the efforts of Trump’s lawyers to stop him from testifying as an elaborate Fifth Amendment defense. While that might work in a court of law, a president taking the Fifth would represent a political earthquake — and would almost certainly be seen by most Americans as evidence of Trump’s guilt.

So, from a legal perspective, Trump is in a vise. While he certainly can, and likely will, try to avoid testifying – and may pursue the issue to the Supreme Court – adopting the legal position that he is above the law and above legal scrutiny will be a tough one to sustain.

But the larger concern should be on matters bigger than Trump’s legal predicament. The level of corruption and law-breaking in this White House is so intense that the president cannot testify before a federal prosecutor without admitting to or committing a crime. It’s hard to think of a greater indictment of Trump’s presidency than this and, like Trump’s fondness for lying, we all should have seen it coming.

Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.