Aaaand We’re Back: Witness Tampering Before Our Very Eyes

Ken AshfordL'Affaire Russe, Trump & AdministrationLeave a Comment

After a relatively crazy week last week, tempered by the somberness of the death of former president Geroge H.W. Bush, and the quietness of Trump being at the G20 summit, he’s back again railing on what is clearly weighing heavy on his Mind: Bob Mueller.

First of all, who is Scott Free?

Whoops, as I write this, he added another….

That’s the President of the United States making a sentencing recommendation about an ongoing investigation where he is one of the individuals being investigated, while praising the “guts” of a witness who refuses to cooperate with authorities. The clear INTENT is to intimidate Stone and any other person considering of testifying against Trump. He’s telling them that “guts” will be rewarded, while he will use the full powers of his bully pulpit to get the harshest possible penalties for those who testify against him.

Here’s from Lawfare, which wrote about Trump’s witness tampering over the summer… because Trump has publicly engaged in witness tampering before:

First, encouraging witness misbehavior, unlike firing officials or directing the conduct of federal law enforcement, is not plausibly within the president’s Article II functions. In urging a potential witness not to cooperate with a federal investigation that touches on his own conduct, the president is much more like a normal citizen before the justice system and much less distinctive, as even those most skeptical of the application of obstruction laws to the president concede. “The president can obstruct justice,” Josh Blackman makes clear, even in arguing that he “cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.” Tampering with a witness is not a lawful authority vested in Trump by Article II.

Second, to the extent that Mueller appears to be considering a pattern of obstructive behavior that includes internal executive-branch management abuses and public communications about law enforcement officials, the additional element of public communications directed at a particular potential witness to encourage that person’s non-cooperation seems significant. Not only does it show that the aggregate pattern does not consist wholly of Article II-authorized behavior, it also widens the scope and breadth of the corrupt behavior at issue.

If Trump isn’t guilty of witness tampering then “witness tampering” laws are inoperative against the rest of us.

It’s such a different tactic than Nixon used. Nixon was concerned and wanted to get to the bottom of things (at least outwardly). Trump does not engage in that. He thinks people are out to get him, which wouldn’t worry an innocent man — even a paranoid innocent man.

Bu there we have it in three tweets. Disparaging those who have and reveal evidence, and praising those who withhold evidence. Seems like the president is nervous about what people know.

Trump seems to get agitated about things before we know what is going on, so this indicates another shoe is about to drop.

Or maybe he just picked up today’s USA Today in the hotel:

Mueller is building a conspiracy case that’s likely to ensnare Trump and his family

It appears that the Mueller investigation is reaching its endgame. After a two-month hiatus for the midterms, special counsel Robert Mueller’s team is prepared to once again show its work. These developments are ominous for President Donald Trump. In short order, expect to see a case of conspiracy to interfere with the 2016 election to be laid out in court. 
Defenders of the president have, despite the obvious progress of the Mueller investigation — more than 30 indictments or guilty pleas, including Trump’s campaign chairman, personal lawyer, national security adviser, deputy campaign manager and foreign policy adviser — consistently argued that “no collusion” has been proved. While it is true that the charges made public have not alleged conspiracy (there is no crime of “collusion”) it should be clear to all but the most obtuse by now that the endgame is drawing near. Mueller is laying out the predicate for a wide-ranging conspiracy case that will likely ensnare the president’s family and, quite likely, Trump himself.

Cohen’s plea on Thursday provides a key ingredient — motive. For those who long wondered why throughout the presidential campaign Trump could not bring himself to say a critical word about Russian President Vladimir Putin, we now know the answer: Trump was hoping to do business in Russia, and doing so would require the approval of Putin.
The putative Moscow project helps provide motive for Trump to have curried favor with Putin. And once Trump repeatedly and publicly denied having any business interests in Russia, Putin had leverage over Trump, because he knew this claim was an easily disprovable lie.    

Cohen’s disclosure exposes not just Trump as having lied about his business interests in Russia, it potentially also exposes his family as well. Donald Trump Jr. and Jared Kushner have both testified before Congress. We know Trump Jr. was asked about his role in negotiations about building Trump Tower Moscow, and while a transcript of Kushner’s testimony has not been made public, it is hard to imagine that he was not also asked about the Trump Organization’s business ties to Russia. 

We now know that Cohen “briefed family members of” Trump about the progress of the venture. Did they testify truthfully about this? Mueller either knows or no doubt soon will find out.

The accumulation of evidence against the president seems to grow each week. Already facing potential charges of obstructing justice, Trump gave Mueller further ammunition this week when he publicly dangled the possibility of a presidential pardon for Paul Manafort, asking a reporter, “Why would I take it off the table?”

A better question is the one Mueller will likely ask: “Why would the president publicly dangle the possibility of a pardon in front of Paul Manafort, who Trump clearly fears will flip on him?” The answer is obvious, and it will likely add to the mountain of accumulating evidence of Trump’s intent to obstruct the investigation into his conduct, and will no doubt be included in Mueller’s final report.

Other shoes will almost certainly drop in the very near future. Mueller has informed the court that he will be filing a statement supporting his assertion that Manafort has repeatedly lied to the government while he was ostensibly cooperating with the Mueller team. Expect this filing to be detailed and fully supported by emails, phone and bank records, as well as other witness statements. 

This pleading could well provide Mueller the opportunity to do an “end run” around Acting Attorney General Matthew Whitaker, who many fear would have the ability to deep-six Mueller’s report, and report directly to the court — and the public — the complete case against Manafort. After all, to establish that Manafort has lied, Mueller will have to lay out in detail what was asked, what Manafort said, and why it is that Mueller believes the responses to be false.  

And so it goes.

UPDATE: He’s really on a roll….

As are the reactions….

Yes, that IS a signal, and isn’t that witness tampering?

Kellyanne Conway’s attorney husband thinks so….

UPDATE #2  Stone weighs in….

Lawfare responds:

Stone is wrong. Even if we believe his representations about having not been contacted, Stone is at an absolutely minimum aware of the existence of grand jury proceedings—whether investigators have contacted him personally isn’t legally relevant here. Additionally, to the extent Stone wants to brush up on his legal research, legislative history suggests that Congress specifically wrote § 1512 so as not to include any particular standard for who constitutes a “witness”—in fact, the statute refers only to “another person” or “any person.” The Second Circuit has held explicitly that § 1512(b) covers potential witnesses—even those who, as the earlier Lawfare group wrote, “have neither previously cooperated with the government nor expressed any intention or desire to cooperate.” And judging by his comments to the press, this would certainly seem to describe Stone.

Still, calling Trump’s tweets witness tampering is far from a slam dunk. Any prosecutor actually pursuing these charges would need to prove beyond a reasonable doubt that Trump specifically intended to intimidate witnesses or dissuade them from testifying against him through his tweets. And there are many more questions raised by the potential application of § 1512(b) to the president’s statements, including whether the statute could be implicated by a publicly posted tweet and whether Trump’s “encouraging someone not to lie” at some point becomes an implicit promise of a pardon if that person stays strong, a fact pattern that would bear a resemblance to the promise of financial reward that the even Third and Ninth Circuits understand as “corrupt.” Interested readers can take a look at the August Lawfare piece for more on those issues as well.

Our colleagues concluded their article by noting that “Mueller’s prosecutors would be foolish to focus on the president’s comments about Manafort as a stand-alone obstruction matter” but that those comments “could form part of a larger obstructive pattern—a part that exists outside of the exercise of core Article II presidential functions.” We agree with that assessment as a practical matter, but there is a risk here of missing the trees for the the forest.

Yes, the president’s larger course of conduct is relevant to demonstrating his overall obstructive intent, and it helps smooth some of the edges of legal theories that don’t neatly apply to the exercise of Article II powers:  examining a larger pattern of behavior means there’s no need to get bogged down in the question of, for example, whether a president can obstruct justice by giving the FBI director an order that it is his constitutional prerogative to give. But wholly apart from the president’s larger course of conduct, discrete violations of criminal statutes are important for a number of reasons. The principle way a president defends the “rule of law,” after all, is by actually following the law. We’d suggest that the president attempting to influence witnesses in the broad daylight of Twitter is as significant a breach of his constitutional duty as it would be if he were to secretly promise pardons in private—both are, in and of themselves, impeachable offenses.

So there!