President Trump took to Twitter Monday morning, haranguing special counsel Robert S. Mueller III and witnesses to his ongoing Russia investigation. His tweets have become a common morning occurrence, particularly in recent weeks. But legal experts are calling Monday’s missives a newsworthy development that amounts to evidence of obstructing justice.
Trump’s first statement went out after Michael Cohen, his former personal attorney who pleaded guilty last week for lying to Congress about the president’s real estate project in Russia. In his tweet, Trump alleged that Cohen lied to Mueller and called for a severe penalty, demanding that his former fixer “serve a full and complete sentence.”
After the overt attack on Cohen came a tweet encouraging Roger Stone, a longtime adviser to Trump, not to become a witness against him:
“’I will never testify against Trump.’ This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about ‘President Trump.’ Nice to know that some people still have ‘guts!’”
Norman Eisen, a senior fellow at the Brookings Institution, said that the most striking thing about Monday was that there were two statements in proximity.
“It comes very close to the statutory definition of witness tampering,” he said. “It’s a mirror image of the first tweet, only he’s praising a witness for not cooperating with the implication of reward,” he said, adding that Trump has pardon power over Stone.
“We’re so used to President Trump transgressing norms in his public declarations,” Eisen said, “but he may have crossed the legal line.”
“Michael Cohen asks judge for no Prison Time.” You mean he can do all of the TERRIBLE, unrelated to Trump, things having to do with fraud, big loans, Taxis, etc., and not serve a long prison term? He makes up stories to get a GREAT & ALREADY reduced deal for himself, and get.....— Donald J. Trump (@realDonaldTrump) December 3, 2018
....his wife and father-in-law (who has the money?) off Scott Free. He lied for this outcome and should, in my opinion, serve a full and complete sentence.— Donald J. Trump (@realDonaldTrump) December 3, 2018
“I will never testify against Trump.” This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about “President Trump.” Nice to know that some people still have “guts!”— Donald J. Trump (@realDonaldTrump) December 3, 2018
Respected figures across party lines also responded to Trump’s tweets on the social media platform.
Sen. Mark R. Warner (D-Va.) called it “serious,” adding that “the President of the United States should not be using his platform to influence potential witnesses in a federal investigation involving his campaign.”
Attorney George Conway, husband of White House counselor Kellyanne Conway, referenced the federal statute most likely to create legal liability for Trump: 18 U.S.C. §§ 1512, which outlines the crime of witness tampering.
What is the law?
Tampering with a witness is obstruction of justice.
It’s a federal crime for an individual to intimidate, threaten or “corruptly persuade” another person with the goal of influencing or preventing his or her testimony.
Did Trump break it?
Historically, there are plenty of cases where similar statements were used as part of an obstruction-of-justice prosecution, according to former acting solicitor general Neal Katyal.
Even if Mueller could technically satisfy the statute, few prosecutors would make a congressional referral based on tweets from the president alone.
Instead, Monday’s slew of tweets probably will be used to evaluate whether Trump’s intent was “corrupt.” They will also be used to show a pattern by Trump to interfere with law enforcement to serve his personal end, Katyal said.
“[The tweets] are just like firing FBI Director [James B.] Comey for investigating the Russia scandal, or firing Attorney General Jeff Sessions because he wasn’t recused from the Russia scandal,” he said. “It’s the same attitude that led President Trump to try to direct [the Department of Justice] to seek the indictments of his political opponents (Hillary Clinton and Jim Comey).”
In his tweet, Trump claimed that Cohen pleaded guilty to charges “unrelated” to him — a statement that’s patently untrue.
Cohen’s initial plea implicated the president in potential campaign finance violations. The August guilty plea prompted Trump to tweet, “[U]nlike Michael Cohen, [Paul Manafort] refused to ‘break’ — make up stories in order to get a ‘deal.’ Such respect for a brave man!” Manafort is Trump’s former campaign manager.
Last week’s plea also made specific reference to Trump.
Katyal said of Monday’s tweets: “The difference with the prior episodes is that you’ve got the whole enchilada in one tweet — you don’t need to refer to other extrinsic evidence. Trump is directly praising one individual for not flipping and attacking another for doing so.”
George is right. This is genuinely looking like witness tampering. DOJ (at least with a nonfake AG) prosecutes cases like these all the time. The fact it's done out in the open is no defense. Trump is genuinely melting down, and no good lawyer can represent him under these circs https://t.co/zqFUoQvWTf— Neal Katyal (@neal_katyal) December 3, 2018
There is a certain amount of ambiguity in Trump’s statements, leaving wiggle room for his defenders to say he was not making threats, but blowing off steam.
As the chief executive, the president oversees criminal prosecution of federal cases. Unlike firing federal officials, directly encouraging a potential witness not to cooperate in an investigation involving his own conduct is significant.
“When you look at the tweets about Stone and Cohen, Trump is sending a very strong message to others that those who cooperate will be punished, and those who keep his secrets will be rewarded,” white-collar defense attorney Barry Berke said.
On Jan. 3, Democrats take control of the House, and a new congressional session will begin.
“The tweets could be the basis for the House to determine if the president engaged in an abuse of power or worse,” said Berke, referring to the articles of impeachment against past presidents — Richard M. Nixon and Bill Clinton — for abuse of power and obstruction of justice.