This may be the most significant revelation since we learned of the president’s efforts to fire special counsel Robert S. Mueller III. Even Attorney General William P. Barr conceded in his infamous memo to the Justice Department, “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, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.” Barr also told Senate Judiciary Committee members during his confirmation hearing that it would be illegal for a president to coach a witness or persuade a witness to change testimony.
The disclosure, of course, raises serious questions as to why Barr redacted material in the report relating to Flynn, and why evidence that Trump did precisely what Barr said was illegal did not convince him that the president had obstructed justice.
How big a deal is this? “It appears to support the mounting evidence uncovered by Mueller that Trump’s lawyers, and presumably Trump himself (unless his lawyers were on an unauthorized mission of their own, which seems most unlikely), were committing the felony of witness tampering,” constitutional lawyer Laurence H. Tribe tells me. “And the subject matter — what we were conceding to our Russian adversaries — went to the core of our national security. So it seems like a very big deal indeed.”
The apparent participation of Trump’s lawyers in a scheme to sway Flynn should come under scrutiny as well. “Trump’s lawyers are fortunate that Mueller did not aggressively investigate their own conduct,” says former prosecutor Renato Mariotti. “The House may not show the same level of restraint that Mueller did.” Dowd, who resigned as Trump’s lawyer in March 2018, might still have criminal liability and could lose his law license for such conduct.
Even if we are not talking about criminal liability, the episode points to Trump’s unfitness for office. Former prosecutor Joyce White Vance tells me, “Knowing that the President’s lawyers sought to discourage Flynn from cooperating with prosecutors underscores how fundamentally flawed this presidency is. Mob bosses try to keep their associates from helping law enforcement uncover crimes, not presidents.” Recall that in the articles of impeachment that were drawn up against President Richard M. Nixon, “approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings” was included in Article I.
The revelation notes that Flynn received communications from someone connected to the administration or to Congress. Matthew Miller, a former Justice Department spokesman, tells me, “These revelations make clear just how important it is that Congress get all of the materials underlying the Mueller report. We already knew that one of Trump’s attorneys had tried to dissuade Flynn from cooperating, but the news that someone connected to Congress did so as well raises questions both for Congress’s own internal ethics process and for the public.” Miller adds, “We need to know who that was and what they did.”
We should focus on three main takeaways from the new information.
First, Barr’s redactions should now come under severe scrutiny. What else has the attorney general hidden, and why? The House now has even more reason to obtain the entire report and to obtain Mueller’s testimony.
Second, this direct evidence of witness tampering calls into doubt Barr’s conclusion that there was no obstruction. Tribe notes, “Barr’s self-contradictions are piling up around him. Just when it seems his once-estimable reputation as a straight-shooter couldn’t be any more thoroughly ground down, it goes through the shredder yet again.”
And third, this incident points to the urgency of hearings in which evidence of Trump’s misconduct is laid out for the public. It is one thing to be told there is evidence the president’s lawyer contacted Flynn; it’s another to read his exact words and hear his voice. No wonder Trump now frantically tries to stop further proceedings. The more we know, the shakier his grip on the presidency appears.