President Trump and former House speaker Newt Gingrich have both now admitted, for all intents and purposes, that Trump's ruse about possible White House tapes was meant to influence James B. Comey's public comments. In an interview Friday with Fox News, Trump congratulated himself for the ploy.
“Who knows, I think his story may have changed,” Trump said. Asked whether his strategy was smart, Trump said, “It wasn't very stupid; I can tell you that.”
Added Gingrich in an interview with AP: “I think he was, in his way, instinctively trying to rattle Comey. … His instinct is: 'I'll outbluff you.'"
But was it just political subterfuge, or was it something that could haunt Trump in his ongoing obstruction of justice investigation? Some have even suggested it could amount to witness tampering.
Norm Eisen, a former counsel to the Obama White House and frequent Trump critic, tweeted this after Trump's initial tweet:
this tweet another possible trump crime: 18 USC 1512, witness intimidation. comey witness 2trump's possible obstruction by demanding loyalty https://t.co/qCUT7AseoA
— Norm Eisen (@NormEisen) May 12, 2017
Meanwhile, Rep. Adam B. Schiff (Calif.), the ranking Democrat on the House Intelligence Committee, also nodded in the direction of potential witness tampering on Thursday, after Trump revealed he had no tapes.
“If the president had no tapes, why did he suggest otherwise? Did he seek to mislead the public? Was he trying to intimidate or silence James Comey?” Schiff asked. “And if so, did he take other steps to discourage potential witnesses from speaking out?”
Trump isn't going to be brought up on charges for this — whatever punishment comes would be in the hands of Congress — and legal experts doubt he would actually be accused of witness tampering, given the circumstances. But some of them say it could feed into the obstruction of justice case.
“If Gingrich’s analysis of what was going on here is accurate and were to be accepted by a finder-of-fact, then this could definitely raise additional obstruction of justice concerns for Trump,” said Peter Zeidenberg, a former longtime Justice Department prosecutor.
Another longtime former Justice Department lawyer, American University law school professor William Yeomans, said, “I certainly think Trump's tape bluff contributes to the large, accumulating pile of circumstantial evidence that he intended to impede the Russia investigation.”
Ohio State University law professor Joshua Dressler disagreed. He said that Gingrich's explanation that the tapes tweet might have been malicious adds to the “smell of the obstruction claim.” But he said that's probably about it: “I don’t think this takes us much further than we already are.”
As for the specific tampering question: According to U.S. code, witness tampering is defined in part as when someone intimidates, threatens or “corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person” with the intent to “influence, delay or prevent” testimony.
David Shapiro, a former FBI special agent and professor at the John Jay College of Criminal Justice, said you could make a cause that this amounted to tampering and that Trump was “gaming the expected testimony” of Comey. But he said Trump could easily argue that he merely wanted any such tapes, if they existed, to be released. Trump, after all, never claimed to actually possess or record any tapes himself; he simply suggested they might exist.
“Thus, it seems doubtful whether Trump engaged in misleading conduct,” Shapiro said.
Renato Mariotti, another former federal prosecutor, agreed with Shapiro's conclusion.
“Perhaps someone could argue that the president's tweet could be used to discourage Comey from testifying, because his words would never precisely match a tape; I don't buy it,” Mariotti said. "[Comey] testified carefully from notes he wrote shortly after the conversations. Perjury is not an issue unless you believe you are testifying falsely. People should keep in mind that not every foolish action is a federal crime.”
Zeidenberg agreed that Trump's defense would probably be that he was merely trying to get Comey to tell the truth.
“But my guess is that his lawyers are pulling their hair out because of statements like this,” Zeidenberg said. “He is dancing right up to the line, and just giving more ammunition to Mueller.”
Indeed, I've argued that being Trump's lawyer may be the second most difficult job in Washington, behind being his spokesman. And Dressler says the tapes ruse is problematic on both fronts — the legal one and the PR one.
“If I were making the argument for obstruction or impeachment, I would say that asserting a false statement that there are tapes — or, perhaps more accurately, hinting … that there are tapes that one knows is false — is an odd way to further justice,” Dressler said. “That makes defending Trump as innocent of obstruction more tenuous.”