Law & the Courts

Debunking BuzzFeed and the Wages of Investigative Secrecy

(Leah Millis/Reuters)
It is long past time that the public was told exactly what the president is alleged to have done.

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uzzFeed published an explosive allegation that the president of the United States ordered his former lawyer, Michael Cohen, to lie to congressional committees investigating Russia’s interference in the 2016 election. Specifically, in a news story sourced to two anonymous law-enforcement officials said to be “involved in an investigation of the matter,” the site reported that Special Counsel Robert Mueller had learned, though multiple witnesses and documents, of President Trump’s alleged instruction to Cohen; subsequently, upon being confronted by prosecutors, Cohen had supposedly admitted that Trump gave the order.

As a rule, Mueller does not comment on press reports about his probe. Yet, in a highly unusual move Friday night, the prosecutor refuted the story by reporters Jason Leopold and Anthony Cormier. Through a spokesman, Mueller asserted:

BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.

Clearly, Mueller did the right thing. The reporting had triggered a frenzy of commentary by Trump critics that impeachment was imminent, and even many chagrined Trump supporters conceded that, if the report was true, the presidency was in grave peril. Had Mueller stood idly by, the administration, and thus the governance of the nation, would have been engulfed in a ruinous storm of suspicion. It is not the special counsel’s job to correct bad reporting, but it would have been irresponsible to stay mum in these circumstances if the story was false.

Nevertheless, this incident highlights how investigative secrecy has wrongly been given pride of place. In the Mueller probe, the desire of prosecutors to go about their business in stealth — to attempt to build a case on undisclosed crimes based on unknown evidence; to prevent witnesses from gaming their testimony and evidence from being tampered with — has been prioritized over the president’s ability to govern the country.

Even in the rare situation when they are actually necessary, special-prosecutor investigations against a president are bad for the country. When the president is the subject of a criminal investigation, when the specter of impeachment hovers, it wounds the executive branch. The political bleeding makes it difficult for the president to deal with Congress, foreign governments, and myriad challenges of governance. The administration finds it ever harder to recruit talented people for jobs in which we desperately need talented people — no worthy person wants to leave safe, professionally rewarding, and financially lucrative opportunities in the private sector to come serve the country if it may mean having to hire lawyers and go through the anxiety of investigations.

The president is not above the law. Consequently, we must tolerate these challenges when there is evidence of a president’s involvement in a serious crime. But that’s why we should be told exactly what the serious crime is and what evidence allegedly implicates the president.

We’re constantly told, however, that such information cannot be disclosed because it will compromise the integrity of the investigation. That is absurd, especially after over two years.

In most cases — those not involving the president of the United States — investigative secrecy will be the most critical concern. Usually, when a serious crime has been committed, vindicating the rule of law is the most significant public interest. Moreover, secrecy is required to protect the reputations of Americans who are presumed innocent and who, though actually innocent, would be tainted if they were known to be under law-enforcement scrutiny.

When the president is the subject of an investigation, however, the public-interest balance is different. Law-enforcement scrutiny of a duly elected president harms the capacity of the country to govern itself. Again, we must accept this fact and navigate through the fallout if there are strong indications that the president may have committed a serious crime. But that is why we need to understand exactly what the charges and evidence are: The public must be able to weigh whether the investigation is worth pursuing — whether there really is a serious crime, whether there is real evidence of the president’s guilt — in light of the harm that the probe necessarily does to the country.

In this instance involving Cohen’s false testimony to Congress (for which he pled guilty in November), an apparently incorrect story about the president’s complicity was damning — so much so that many Democrats and pundits had the president on the verge of being removed from office. The president was in a position of dealing with this profound political damage while trying to address a border-security emergency; a government shutdown; the status of American forces in Syria, Iraq, and Afghanistan; and various other vital matters.

If you don’t like Trump, of course your first impulse is to scoff, “Too damn bad for him.” But the point is: It is bad for America. It is not a question of whether we agree politically with the president; it is a matter of having a government that is capable of functioning, regardless of who is president. It is a matter of not undermining the republic unless we are certain there is a compelling reason to do so.

Special Counsel Mueller was thus right to shoot down the BuzzFeed report. Did he do it because he believed the story was damaging to the country? I’d like to think so. Unfortunately, there have been many sensational allegations that have not been shot down in the last two years, based on fabricated evidence and deceptively selective intelligence leaks. We still do not know for sure whether the president is the subject of a criminal investigation, the crimes alleged, and what if any evidence implicates him. That has gone on for a very long time.

To his credit, and notwithstanding the president’s unseemly “witch hunt” riffs, the special counsel has never said a word, or written a single sentence in the many charges he has filed, that hints at criminal culpability on the part of the president. But the specter of prosecution and impeachment has hovered every day.

As a result, I can’t conclude that the special counsel is especially worried about the damage that inaccurate and politically damaging reporting does to the Trump administration. Rather, the BuzzFeed story was different because Mueller’s own reputation was at stake. Because of the way the report was framed, many readers naturally believed Mueller’s own investigators were the source of the leaked — and apparently incorrect — allegations that Trump told Cohen to lie to Congress. Mueller thus corrected the story.

Of course, it is not the special counsel’s job to police the media. But he is in that position only because secrecy has been given too wide a berth in the probe. It is long past time that the public was told exactly what the president is alleged to have done, and how strong the evidence is that he has done it.

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