Did the president of the United States just tamper with a federal witness?
In a lively tweet on Monday morning, President Trump praised his longtime adviser Roger Stone for vowing not to testify against him. Stone is currently suspected of having possibly served as a conduit between the Trump campaign and WikiLeaks during the 2016 campaign.
“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
Some prominent lawyers, including George Conway, the husband of Trump’s White House counselor Kellyanne Conway, and Neal Katyal, a former solicitor general in the Obama administration, have suggested that Trump’s public lauding of Stone is part of a broader effort to dissuade Stone — and others, like former Trump campaign manager Paul Manafort — from cooperating with special counsel Robert Mueller’s Russia probe.
Witness tampering is a federal crime. But it’s notoriously difficult to prove in court because you have to show that someone is acting with the specific purpose of obstructing an official proceeding.
Has Trump crossed that line with his latest tweet about Stone? Is there a legitimate case to be made against him in light of everything he has said and tweeted about Mueller’s probe so far?
To find out, I reached out to nine legal experts and asked them those very questions. Their full responses, edited for clarity, are below.
Renato Mariotti, former federal prosecutor, 2007 to 2016
Trump’s tweets do look a lot like witness tampering, but it’s complicated because Trump is a politician who says a lot of things for many different purposes. To prove that Trump engaged in witness tampering, prosecutors would have to prove that he made those tweets with a corrupt intent — in other words, the intent to obstruct an official proceeding — and that he wrote with the intent to influence Stone’s testimony.
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.
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.
Samuel Gross, law professor, University of Michigan
Are Trump’s tweets admissible evidence of witness tampering? Yes. Period. Would they be enough to convict a president who lies and cheats in plain view every week of the year, about matters small and huge, and gets away with it? Who knows?
Joshua Dressler, law professor, Ohio State University
Neal Katyal says that the Department of Justice “prosecutes cases like this all the time.” Perhaps, but prosecutors sometimes push the envelope too far. Standing alone, I think it is a stretch to suggest that Trump’s latest tweet constitutes witness tampering. Stupid, unpresidential, par for the course — but not tampering by itself.
Ciara Torres-Spelliscy, law professor, Stetson University
Witness tampering is never a good look for a president. American presidents need to be extra careful about not even appearing to tamper with witnesses in criminal cases, especially if the criminal case could potentially involve liability for the president himself.
The reason is that witness tampering can lead to impeachment. To wit, Article 1 of President Nixon’s impeachment included: “approving, condoning, acquiescing in, and counseling 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 …”
Also, in a civil context, witness tampering was a charge in President Bill Clinton’s impeachment. Article III stated, “On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading.”
Lisa Kern Griffin, law professor, Duke University
The president’s most recent statements are further incidents of both obstruction and witness tampering. The relevant statutes prohibit attempts to impede federal investigations and attempts to induce witnesses to withhold testimony. The president appears to be doing both, and engaging in such conduct without art or subtlety is no excuse.
Whether or not he succeeds, he has committed a crime. Issuing threats or inducements publicly does not make them legal. Nor can he claim that he has the lawful power as president to obstruct in this way, an argument he has made in the past with respect to personnel decisions such as the termination of FBI Director James Comey. We have seen similar statements before, but the violations keep getting more obvious and egregious, and seemingly more desperate as well.
Jed Shugerman, law professor, Fordham University
On the one hand, I understand where George Conway and Neal Katyal are coming from, because I assume they are putting this tweet in the context of reports that Trump has dangled pardons in return for witnesses’ lies and silence — and I, along with Randall Eliason and Laurence Tribe, have argued that such conduct is a felony bribery conspiracy, which could also put their lawyers in criminal jeopardy.
On the other hand, taking such tweets on their own, how can it be felony tampering to publicly agree with a witness account, even if you know he’s lying? I say this with the caveat that this area is not in my expertise, but I am concerned that some are pushing obstruction statutes into ambiguous territory that could set them up for being overturned or sharply limited on unconstitutional vagueness grounds, similar to how Justice Gorsuch rightly ruled in the pro-immigrant Dimaya decision this year on the unclear meaning of “crimes of violence.”
If a criminal defendant or his lawyers put out a statement denying the charges and simply agreeing with another defendant’s account, how can that be witness tampering? This interpretation is far too broad. Some suggest that Trump’s condemnation of Cohen around the same time is implicitly the context of a pardon dangle, but again, I think that’s a stretch. A defendant has to be able to speak publicly in his or her defense not under oath, even if that defense is false, unwise, and counterproductive.
I think their argument against Trump makes more sense only if these commentators are taking into consideration the much broader context, including reports of pardon dangling. If they are assuming other contacts and other tampering, these tweets could be additional evidence (a mountain of evidence) of corrupt intent for other illegal acts, acts in furtherance of obstruction (and potentially part of a bribery conspiracy). Their argument may also make more sense as impeachable for high crimes and misdemeanors, which are abuses of power not limited to technical statutory felonies.
I agree with Renato Mariotti that the context of Cohen’s sentencing memorandum on Friday, alleging past contacts with Trump’s lawyers to influence his testimony, is the most damning context, but I still suggest that background includes the criminal conduct, and these tweets are still evidence of corrupt intent rather than the criminal acts in themselves.
Jens David Ohlin, law professor, Cornell University
I wouldn’t describe them as witness tampering. Instead, I would describe them as one data point in a continuing pattern of interference in the special counsel’s investigation. In one day, Trump has tweeted about Roger Stone’s loyalty while at the same time urging the judge to give Michael Cohen a harsh sentence.
It would be one thing for a private citizen to speak up about a criminal investigation, but it’s quite another for the target of the investigation to speak up. And it’s even more worrisome when it is the target of the investigation who also uses his executive power to stymie the investigation by, for example, firing James Comey or Jeff Sessions.
Susan Block, law professor, Georgetown University
There are several factors that collectively suggest President Trump might be credibly accused of “witness tampering” in the Mueller investigation:
1. President Trump’s praise for Roger Stone’s guts for vowing not to testify against President Trump.
2. President Trump’s scorn for Michael Cohen’s “flipping.”
3. President Trump’s dangling a potential pardon for Paul Manafort.
Andrew Wright, senior fellow and founding editor of the legal blog Just Security
The president has made it clear he believes in “omertà” — the old criminal organizations’ code of silence. He characterized Manafort as strong before he entered his cooperation agreement with the special counsel, and did so again after Manafort broke that agreement. In contrast, he called Michael Cohen “weak” after he agreed to provide information to the special counsel.
Now he is praising notorious political dirty trickster Roger Stone for his public declaration that he will “never” testify. The president’s public musings are clearly designed to undermine the Russia investigation and fortify those in his camp in their refusals to testify. Such conduct is inconsistent with the president’s constitutional oath of office, as well as his obligation to “take care that the laws be faithfully executed.”
If this related to a military court-martial, the president’s comments would clearly constitute “undue command influence” that would require court remedies. However, here, without proof of either a specific threat or inducement, it would be very hard to prove statutory witness tampering based solely on President Trump’s statements coupled with the broader context of his power. But such evidence could be out there, and these statements suggest that is a line of inquiry congressional and law enforcement investigators should pursue.