What do you call a “seething” president with itchy Twitter fingers watching what some are calling the most highly anticipated political Super Bowl in decades?
“A defense attorney's nightmare,” Ryan Goodman, a New York University law professor and the editor of the Just Security blog, told The Washington Post.
“If I was his defense attorney, I would do everything I could do to ask him not to live-tweet during Comey's testimony.”
Jennifer Rodgers, a former federal prosecutor, noted that tweets carry no special privileges under the law. They're the same as spoken words.
“He's got to be careful. Any statement that he makes assuming they're authentically his statements could be used against him in a criminal proceeding,” said Rodgers, who is executive director of the Center for the Advancement of Public Integrity at Columbia Law School.
“I'm sure that to the extent that his lawyers can get him to avoid Twitter, they're very strongly telling him not to say anything at all.”
The potential of revealing “intent”
Goodman said it's hard to predict the many ways Trump might expose himself to legal liability on Twitter, but one of the surest ways would be for the president to tweet statements that shed light on “intent,” one of the most difficult elements for a prosecutor to prove during an obstruction-of-justice case.
If Trump reveals more about his intent when deciding to fire Comey, or when he allegedly asked Comey to drop the investigation into former national security adviser Mike Flynn, he could further imperil himself, Goodman said. He noted that — in the eyes of some legal experts — the latter accusation is the clearer case of obstruction because once an FBI investigation stops, it's “very hard for it to be reopened.”
Despite administration officials having claimed the executive order is not a ban,” Trump affirmed that his revised order is, in fact, a “travel ban” on Twitter this week, Zapotosky noted.
“Neal Katyal, the lawyer who argued for the challengers in the U.S. Court of Appeals for the 9th Circuit, wrote on Twitter, 'Its kind of odd to have the defendant in Hawaii v. Trump acting as our co-counsel. We don't need the help but will take it!' " Zapotosky wrote. “He also wrote that he was 'waiting now for the inevitable cover-my-tweet posts from him that the Solicitor General will no doubt insist upon.'”
Even if Trump avoids discussing intent and obstruction, there are other ways his tweets will keep his legal team on edge, Goodman noted.
“Aside from the specific elements of obstruction of justice, I would be generally worried that my client would make statements that were later proven to be untrue or contradicted not only by the former director of the FBI but other witnesses or people with knowledge of the events,” Goodman said. “It will imperil President Trump's credibility if he tries to contradict Mr. Comey with statements that are later shown to be untrue. "
“Mr. Trump could also undermine his own defense if he shows he was aware of an ongoing grand jury proceeding at the time he fired Mr. Comey,” he added.
Avoiding suspicion-fueling rants
Even if the president avoids inflaming accusations of obstruction with direct evidence, offering a running commentary could make him vulnerable if his words fuel the suspicion of obstruction swirling around him, according to Kenneth F. McCallion, a former federal prosecutor and the author of “The Essential Guide to Donald Trump.”
“If he tweets something like, he told Comey he was wasting his time or wasting the public's money, it's only going to add fuel to the fire,” McCallion said.
He noted that the president has a tendency to issue denials in a way that should also make his legal team shudder, especially if they begin popping up Thursday on Twitter.
“Trump has a way of admitting the essence of the other party's recollection of an event,” McCallion said. “He then spins that admission in a way that he feels would be favorable to himself, but it basically constitutes an admission of the underlying facts that are being disputed.”
Reactions yes, inaccuracies no
The idea that Trump should abstain from using social media during a consequential moment in his presidency is a sentiment that has been voiced by prominent members of his own party.
“You need to listen to your lawyers, Mr. President,” Graham said. “I am trying to help you, but every time you tweet it makes it harder on all of us who are trying to help you.”
Columbia Law School's Rodgers said that if she were advising a Trump who was determined to tweet, she'd tell the president to make sure that his statements were "100 percent, factually true.”
“I suppose he could safely say reactionary things like, 'that's outrageous,' or 'my supporters know I'm an honest person,' " she said. “But certainly any factual statements or allegations he makes could get him in trouble.”
The question for Trump, Rodgers and other legal experts said, is why?
“Why give ammunition to the other side if you don't have to?” she said. “A client that you can't control is the worst kind of client.”