Discussion of Donald Trump’s possible criminal wrongdoing since assuming the presidency has focused most intensely on classical obstruction of justice. Those matters involve whether the president impeding investigations into Michael Flynn and Russian election interference, and are reportedly under scrutiny by special counsel Robert Mueller and the Senate Judiciary Committee.
But Trump may yet cross another line that risks embroiling him in criminal conduct, and which he seems willing to perform very publicly on Twitter: intimidating witnesses.
Over the years, Trump has used his Twitter account to target many different people. They now include potential witnesses in Mueller’s investigation. One is Sally Yates, the fired acting attorney general who warned the White House that Flynn may be compromised and that Flynn had misled Vice President Mike Pence about his conversations with the Russian ambassador. Ahead of her testimony before a Senate Judiciary subcommittee in May, Trump suggested Yates leaked classified information to the press. He tweeted, “Ask Sally Yates, under oath, if she knows how classified information got into the newspapers soon after she explained it to W.H. Counsel.”
Another is Attorney General Jeff Sessions, who was a senior adviser to the Trump campaign. On top of the interest in his own interactions with Russians, Sessions is likely an important witness in the firing of Comey and in events surrounding Comey’s Valentine’s Day meeting with Trump, at which Comey says Trump pressured him to drop the Flynn investigation. Trump ratcheted up the pressure on Sessions in recent weeks, describing him on Twitter as “beleaguered” and “VERY weak,” and may well return to this theme if and when Sessions’ involvement is back in the news.
Comey himself will be a key witness to any obstruction case. Trump tweeted on May 12 that Comey “better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” While Trump didn’t end up live-tweeting Comey’s testimony before the Senate Intelligence Committee as he’d promised, his son Don Jr. did, disputing Comey’s account and interpretation of Trump’s actions.
Other potential witnesses to find themselves on the receiving end of Trump’s Twitter account include former acting (and current Deputy) FBI Director Andrew McCabe – whom Trump has criticized as conflicted – and Deputy Attorney General Rod Rosenstein, who penned the letter recommending Comey’s dismissal but also appointed Mueller. Trump has launched broadsides against these potential witnesses in comments to the press as well. Sessions, he told the New York Times, should not have recused. Trump tried to impugn Rosenstein’s independence by saying the Deputy AG (incorrectly, as it turns out) was from Baltimore, a place with few Republicans.
Can Trump tweet his way into criminal liability? Witness-tampering, a subspecies of obstruction, is dealt with in section 18 U.S.C. § 1512. Alongside conduct like killing or using physical force against a witness, the section outlaws “knowingly” using intimidation, threatening a person, or corruptly persuading a person with the intent to influence, delay or prevent their testimony in an official proceeding, or to cause them to withhold their testimony.
Of course, in reality, as a sitting president, Trump faces a very low risk of being indicted. But whether he crosses a line set by federal criminal law is still worth considering. If his conduct constitutes a crime, or even simply comes close, that could form the basis of a future article of impeachment. In any case, the public deserves to know when its president veers close to illegality.
Trump’s tweets about potential witnesses are “imprudent,” former federal prosecutor and Professor Alex Whiting says. “I have no doubt that his lawyers have told him to lay off this kind of behavior, and if there were a judge involved in the case I am certain that he or she would admonish Trump about these kinds of statements, because there is indeed a risk that they could interfere with witnesses.”
Trump has probably not fallen foul of § 1512 yet, however.
To charge Trump with the offense, a prosecutor would want “clear evidence” that the tweets “crossed the line from the ordinary kinds of attacks that investigation targets or defendants might make (usually through their lawyers) on an investigation or witnesses over to statements designed to interfere with a witness’s testimony,” Whiting says.
“In that respect you would examine his statements carefully to assess to what extent they were threatening, whether they indicated that there might be consequences to testifying, whether they indicated pressure to withhold or fabricate testimony.”
Taking the offense step-by-step, the first requirement is knowingly using intimidation, threatening, or corruptly persuading a person.
While Trump’s statements so far are bullying, and arguably could have the effect of making people afraid to go up against him, “I don’t think we are at the point where a prudent and responsible prosecutor would charge these statements” under § 1512, says Whiting.
None of Trump’s tweets so far are threatening, according to former federal prosecutor Renato Mariotti.
And they probably also don’t count as “intimidation,” which courts define as “saying or doing something that would make a reasonable person feel threatened under the circumstances.” Mariotti told me that the typical “intimidation” case “is when a robber passes a bank teller a note saying ‘give me all your money.’” A tweet about an unrelated issue, even one issued by the President, would likely not meet that definition–although that may just be based on President Trump’s tweets to date.
That leaves corrupt persuasion. “I’ve taken a look at cases that have been prosecuted under this prong of § 1512 and all of them involve someone trying to convince a witness to lie or take the Fifth,” Mariotti says.
Skirting closest to the line is Trump’s tweet suggesting he taped his conversations with Comey. That statement seems to touch on Comey’s testimony, while the others relate more to the conduct of the investigation. However, it doesn’t explicitly suggest Comey should provide false testimony, but rather the opposite.
“It’s possible to argue that Comey would be so afraid of getting the details wrong that Trump’s comment would chill his testimony,” Mariotti says. “I don’t buy it–Comey is the former head of the FBI and spent his career in law enforcement. In my nine years in law enforcement I faced much tougher threats than that tweet. I don’t think I could convince a jury that the Comey tweet was witness tampering.”
It is worth noting that Trump has the power to fire a number of these potential witnesses – their positions and livelihoods are in his hands. That fact makes his statements worse, says Whiting. But while an explicit threat to fire someone might constitute “corrupt persuasion,” Mariotti says, a general statement about how the investigation is a “witch hunt” is closer to constitutionally protected speech.
The next requirement is that the act be done with intent to influence, delay or prevent a person’s testimony, or to cause or induce a person to withhold testimony or a record or document.
To prove such intent in the case of tweets like these, Mariotti says you would need specific communications: Trump writing to someone that he intended to tweet to damage their reputation, for example, so they didn’t talk about a specific subject, for example.
“In the case of more obviously problematic communications that are typically prosecuted under § 1512, like meeting with a witness to convince him to lie, the defendant’s intent can be inferred from his or her own actions,” Mariotti says.
Finally, the testimony has to be in an “official proceeding.” As the U.S. Attorneys’ Manual notes, this differs from other obstruction offenses like § 1505, which require a pending proceeding. That phrase has generated some debate, with an argument that an FBI investigation doesn’t count. And that could be fatal to the obstruction case against Trump. The “official proceeding” requirement avoids that issue: it includes FBI investigations.
While Trump has probably stopped short of violating the law in his tweets so far, his lawyers should keep §1512 in mind. Says Whiting, “Trump would be wise to be careful because he is close to the line and it would not take much more to cross it.”
Of course, Trump’s tweets are just one (public) part of the picture. One would also want to know whether he has taken any other actions inside the halls of government that might be relevant. For example, we know Trump has made his displeasure over Sessions’ recusal known in conversations with his Attorney General. He also asked senior intelligence officials to publicly state that his campaign was not involved in collusion with Russia, which they refused to do. The more pointed question is whether there have been relevant communications with or internal rebukes of potential witnesses within the administration.
The scope of this issue is compounded by the potentially long list of possible witnesses. Soon after Mueller’s appointment, the then-acting FBI Director reportedly “told several of the highest-ranking managers of the bureau they should consider themselves possible witnesses” in the obstruction of justice investigation. These and other individuals would do well to keep an eye out for any attempts to persuade or intimidate them, and report any such incidents.
Even if he hasn’t crossed the line but merely approached it, the president would be politically prudent to be careful in this space. It is not simply a case of whether a prosecutor would ever pursue the charge of witness tampering against him. Should Congress choose to pursue censure or impeachment, it would matter whether Trump’s actions could form a plausible basis for congressional punishment. There is, at the end of the day, also the court of public opinion.