Monday, December 3, 2018

Two more legal opinions on Trump's "witness tampering" tweet

, and other highly respected attorneys quickly noted that Trump’s tweet looks a lot like witness tampering. They’re right—it does. But proving beyond a reasonable doubt that it’s witness tampering is more challenging than it might seem at first glance.

Mueller would need to prove, among other things, that Trump had “corrupt” intent and acted with the intent to cause Stone to withhold testimony.

Trump has said and done many things over the last two years that suggest that he often acts with the intent to impede the Mueller investigation—I collected many of them in the piece I wrote in January (here).

But for purposes of a stand-alone witness tampering charge, what matters is Trump’s intent when he wrote this specific tweet. Evidence of his other acts would be very relevant but not dispositive.

Trump’s lawyers would argue that the purpose of his tweet was to influence the public, not Stone, and that they could have spoken to Stone’s attorney privately if Trump actually wanted to influence him.

Trump says a great many things on Twitter and isn’t careful with his words, so some courts have concluded that his words can’t be taken literally or seriously. Here is a short thread discussing those cases (which of course were in a different context).

Prosecutors would likely respond that by speaking broadly to the public instead of privately to Stone, Trump was trying to influence Stone in a manner that gave him plausible deniability. They would point to Michael Cohen’s recent sentencing memorandum, in which his attorney said that Cohen lied in part due to Trump’s messaging.

Because of the challenges of proving “corrupt” intent, and the legal challenges Trump could bring, I think the best way for a prosecutor to charge today’s tweet would be as part of a larger conspiracy to obstruct justice, instead of as a stand-alone crime.

But since the U.S. Senate, not ordinary Americans, would be the jury it’s unclear to me how much this will matter. It’s hard for me to imagine 20 Republican Senators voting to convict Trump for obstructing justice. It’s unclear what it would take for them to convict.

And, Ken White:

Today the President of the United States tweeted approvingly about Roger Stone refusing to testify against him. Lots of people thought this was norm-violating and looked horrible and they were right. But is it actually witness tampering?

Though it's very hard to prove this is witness-tampering, it's absolutely norm-violating, and if a CEO or mob boss or other authority figure did it, the feds would absolutely crawl up their ass and look for a way to charge them for it.

The primary federal witness-tampering statute is 18 U.S.C. 1512. There's no threat here, so the relevant part is 1512(b), which prohibits "corruptly persuading" a witness with intent to influence or prevent their testimony or get them to withhold it. But wait! What does "corruptly persuade" mean?

[W]hat "corruptly persuade" means is one of those oft-disputed touchy-feely areas of law. In fact, the circuits -- the various United States Courts of Appeal -- disagree on its meaning. Specifically, the circuits are split over whether it's "corrupt persuasion" to try to persuade someone to do something they have the right to do, like take the Fifth.

The President isn't tampering if he's genuinely just saying "hooray for Roger Stone telling the truth." The statute has a specific affirmative defense in 1512(e) if the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully. (I mean, if you merely negate an element of the offense, that's not really an affirmative defense, is it, and this serves to make the requisite mental state less clear, but who am I to tell the drafting geniuses in Congress how to write a statute?)

So. Though I certainly understand why anyone would interpret the President's tweet as encouraging Roger Stone to continue being Roger Stone, and why we may think he knows Stone is lying, it would be an extraordinarily difficult tampering cause to prove because you'd have to prove that he intended to influence Stone not to testify against him truthfully, knowing that Stone had harmful things to say he hadn't said yet, and not that he was merely thanking him for telling the truth. Damn tough case.

Let us not bother with 18 U.S.C. 1503, the generic "influencing" statute, which has language making it a crime to "corruptly . . . obstruct or impede" justice, because that collapses back into the same "corruptly" definition analysis.

And, of course, Congress (or at least a majority of the new House) might view it as obstruction or tampering, and could include it in an article of impeachment.

Postcript: and, of course, @renato_mariotti's analysis is on point.

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