Just because the president does it doesn't make it legal, President Donald Trump's pick for attorney general says.
William Barr, Trump's nominee for the nation's top law enforcement post, agreed during testimony in the Senate that a president who persuades someone to commit perjury is committing the crime of obstruction of justice.
"Any person who persuades another to," Barr told Sen. Amy Klobuchar, D-Minn., during his Senate Judiciary Committee confirmation hearing on Tuesday. She had asked him whether "a president persuading a person to commit perjury would be obstruction."
Barr's televised comment of that otherwise uncontroversial fact rocketed around social media Thursday night after a bombshell BuzzFeed report. Neither CNBC nor NBC News has confirmed the report.
BuzzFeed, citing two law enforcement sources, said Trump directed his former personal lawyer Michael Cohen in 2017 to lie to Congress in sworn statements about details of an aborted effort to build a Trump Tower in Moscow, Russia.
Late Friday, a spokesman for special counsel Robert Mueller disputed elements of the report in a statement to CNBC.
"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," Peter Carr said in a statement to CNBC.
Cohen pleaded guilty in November to falsely telling Congress that Trump's personal involvement was significantly less than he had first claimed, and that the project continued much longer into the 2016 presidential campaign year than he had initially claimed.
Observers noted Thursday night the exchange.
Trump's current lawyer, Rudy Giuliani, attacked the BuzzFeed report by incorrectly attributing it to Cohen.
"If you believe Cohen I can get you a great deal on the Brooklyn Bridge," Giuliani said.
Giuliani issued another statement Friday, saying: "Any suggestion — from any source — that the President counseled Michael Cohen to lie is categorically false."
If Barr is confirmed as attorney general, as is considered likely, he will be overseeing special counsel Robert Mueller and other federal prosecutors investigating whether Trump obstructed justice by directing Cohen to lie to Congress.
Cohen is due in March to begin serving a three-year prison sentence for that and other crimes, including ones related to hush-money payments made to purported ex-paramours of Trump.
Klobuchar, in her questioning of Barr, focused on a memo that he sent — unsolicited — to the Justice Department last year.
She also asked him a series of hypothetical questions related to conduct that Trump is suspected by some of committing.
In that memo, Barr argued that Mueller should not be allowed to demand that Trump be questioned by the special counsel's office about "alleged obstruction" related to his 2017 firing of FBI Director James Comey, who has said Trump asked him to "let ... go" of a probe into former National Security Advisor Michael Flynn's contacts with Russians.
Barr argued that Mueller should not be allowed to pursue an obstruction case against the president merely for exercising a power that he has under the Constitution — terminating a subordinate.
But in that memo, Barr wrote: "Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding's truth-finding function."
"Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony," Barr wrote.
Klobuchar zeroed in on this line during her questioning on Tuesday.
Klobuchar: In your memo, you talked about the Comey decision and you talk about obstruction of justice, and you already went over that, which I appreciate. You wrote on Page 1 that a president persuading a person to commit perjury would be obstruction, is that right?
Barr: That, Yes. Or, any, any, well, you know, any person who persuades another to — yeah.
Klobuchar: OK. You also said that a president or any person convincing a witness to change testimony would be obstruction. Is that right?
Klobuchar. OK. And on Page 2, you said that a president deliberately impairing the integrity or availability of evidence would be an [obstruction]. Is that correct?
And so, what if a president told a witness not to cooperate with an investigation or hinted at a pardon?
Barr: You know, I'd have to know the specific — I'd have to know the specific facts.
Klobuchar: OK. And you wrote on Page 1 that if a president knowingly destroys or alters evidence, that would be obstruction.
Klobuchar: OK. So, what if a president drafted a misleading statement to conceal the purpose of a meeting? Would that be obstruction?
Barr: Again, you know, I'd have, I'd have to know the, I'd have to know the specifics.
Late Friday, Klobuchar said in a statement to CNBC that she was not aware of the BuzzFeed report at the time she asked Barr these questions.
"When I asked the questions of the nominee I was not aware of the later released BuzzFeed report. I asked the questions for two reasons. The first reason was to follow up regarding potential obstruction of justice violations he did not raise in the memo, like promising pardons and drafting misleading statements to conceal information. The second reason was to get on the record at the hearing certain meaningful nuggets I found in the 19-page memo that had not gotten enough attention: that the President's Attorney General nominee actually put in writing things that a President could do that did amount to obstruction of justice—like ask someone to perjure themselves or change their testimony. I thought those scenarios were in the realm of the possible so I asked about them."