The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Did the President Commit Witness Tampering?
Some Thoughts on How the President's Stalwart Defenders Will Excuse This Latest Episode
[UPDATE 9-28 AT END OF POST]
Here is the federal witness-tampering statute (18 USC 1512(b)):
Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, … with intent to —
(1)influence, delay, or prevent the testimony of any person in an official proceeding; [or]
(2)cause or induce any person to—
(A)withhold testimony, or withhold a record, document, or other object, from an official proceeding … shall be fined under this title or imprisoned not more than 20 years, or both.
Here's what our president said yesterday, at an event for UN staffers and their families:
So the whistleblower came out and said nothing. Said: 'A couple of people told me he had a conversation with Ukraine.' We're at war. These people are sick. They're sick. And nobody's called it out like I do. I don't understand. People are afraid to call it out. They're afraid to say that the press is crooked. We have a crooked press. We have a dishonest media. So now they're devastated, but they'll always find something. I'm sure there'll be something they'll find in this report that will suit their lie.
But basically that person never saw the report, never saw the call. Never saw the call. Heard something, and decided that he or she or whoever the hell it is — sort of like, almost, a spy. I want to know who's the person that gave the whistleblower, who's the person that gave the whistleblower the information, because that's close to a spy. You know what we used to do in the old days when we were smart? Right? With spies and treason, right?"
I believe that his reference to "what we used to do in the old days … with spies and treason" refers to execution, which is indeed what we used to do with (convicted) spies (see, e.g., Julius and Ethel Rosenberg), though I do not believe we have executed anyone for spying since then (hence, the reference to the "old days").
This sure looks like a prima facie case of witness tampering to me. There is an ongoing official proceeding; we know that the whistleblower him/herself is going to be called to testify, and one can certainly expect others who were present during the July 25th call, or who had notice of the July 25 call and who might, therefore, have "[given] the whistleblower the information," will be called to testify. The President of the United States—our chief law enforcement officer—has called these people "close to spies" and made reference to the punishment to which spies were subjected "in the old days when we were smart," and to "treason" (a federal crime that still carries the death penalty). The effect of these comments, surely, will be to make potential witnesses think twice about providing evidence against the president (and having their identities revealed to the public and to federal prosecutors who work for the President).
The hard questions, as always in a witness-tampering case, is: Did Trump act with the "intent" to "influence" or "prevent" the testimony of these individuals? Using the ordinary (and rebuttable) presumption that a person "intends" a consequence when (a) they foresee that it will happen as a result of their conduct and (b) desire it to happen," I think he did—though of course without more evidence (including Trump's testimony, under oath, about what he did or did not intend, and other actions that might suggest proper, or improper, motives) one cannot be certain of that conclusion. [That's why it's just a prima facie case of witness tampering at this point].
I expect, given many of the comments on my earlier postings on the Ukraine matter, that some readers will, in the face of this, continue to hold to the position that Trump has done nothing wrong. Here's my best guess as to the arguments they will raise—and if I've missed any, please do set me straight in the comments.
- "It can't be 'witness tampering' under the federal criminal code, because DOJ takes the position that the president can't be charged with any (federal) crime."
False. First of all, the current DOJ position is that the President cannot be charged with a federal crime while in office; if Trump were no longer the president, he could be criminally charged in connection with the Ukraine affair (or anything else). More importantly, even though a president can't be charged with a federal crime while in office (because, as head of the DOJ, he would in effect be acting as prosecutor and defendant in such an action), he can certainly commit a federal crime while in office. That, of course, is the whole point of an impeachment proceeding; Presidents Nixon and Clinton were both charged with the crime of obstruction of justice, though the charge was contained not in a criminal indictment but in Articles of Impeachment.
2. It's not "witness tampering," because nobody's been charged with anything at this point, and therefore there aren't any witnesses who could have been "influence[d]" or "prevent[ed]" from testifying.
Wrong again. The statute refers to "testimony … in an official proceeding." An impeachment inquiry is an "official proceeding" (as is, I believe, any Congressional hearing).
3. "He was just joking—chill out! He wasn't actually saying that the whistleblower should be executed!"
Well, that's a harder one to deal with, I admit, especially because the President's intent is an element of the crime. I'm a little dubious, generally, about the "it's a joke" defense, having heard it before, when Trump invited the Russians to hack Clinton's server (which—coincidentally enough—began, according to various federal indictments and the Mueller Report, that very day). And listening to the audiotape of his remarks, he certainly sounds like he's not joking. But again—it's just a prima facie case we've got here; if Trump was joking, let him come forward, under oath, to say so.
4. "He couldn't have intended to intimidate any potential witnesses, because he was speaking at a private event, and therefore had no reason to think that the targets of the supposed intimidation would ever hear about it."
Again, this gets a "Maybe, but …" First off, this wasn't really a "private" event like a family dinner or a confidential briefing by a few top aides; it was an event staged for hundreds of US employees (and their families), and it seems a bit disingenuous to suggest that Trump expected that his comments would not be made public or otherwise communicated to the officials in the White House and the Intelligence Community who were being accused of spying and treason. Furthermore, because we don't know the identity of the individuals who were the target of Trump's ire, and we don't know (and perhaps Trump didn't know) for certain that none of them were in the room. UN Ambassador Kelly Craft, for instance, was in the room, and, as a senior official with international responsibilities, might have been the source of some of the leaked information. So this is hardly like an offhand comment to a couple of friends over dinner; as unfortunate and intemperate as such comments might be, they wouldn't, in that case, be directed specifically at the whistleblower or any of the whistleblower's sources. Here, it's a little easier to presume—again, rebuttably—that Trump knew full well and intended that word of the threats would get to the "right" people.
As I said, perhaps some readers have other possible defenses they could proffer. Please do—but I'd appreciate it if you could avoid discussion of the many irrelevant defenses that are simply variants of the "Fake News! Hillary's email server! The Steele Dossier! What Biden did was worse!" etc. arguments.
***********
UPDATE 9-29 [also posted as a comment]
Two themes emerged from the comments that I want to respond to.
1. Many commenters noted that Trump's comments were not directed at the whistleblower, but at the whistleblower's sources—the "leakers." And that's OK (even if his language was a little extreme) because the "leakers" have done a bad thing and its correct and proper for the President to call them out on it.
I'm surprised at the number of people who buy this. Here's the problem with it: Because we don't know who the whistleblower is or what job he/she has within the Intelligence Community, we have no reason to believe that the disclosure of information to him/her about the July 25 call was a "leak." Suppose the whistleblower is the Director of the CIA; or the Assistant Deputy National Security Advisor; or an Intelligence Analyst on the Ukraine desk at the NSA or DIA. It's not a "leak" for someone in the White House, say, who had participated in the call to talk to that person about what transpired; that is a perfectly ordinary part of everyday information-sharing within the Executive Branch. I would assume that whenever the President has a phone conversation with a foreign leader, a memo is prepared, copies are sent to all sorts of people (subject to the rules regarding classified or confidential information), and those people often talk to one another and to those who were present during the call to discuss and analyze the implications for US policy.
It's funny that DNI Maguire didn't complain about the "leakers" at all, but instead he said that the whistleblower, as far as he could tell, behaved properly and prepared and submitted the complaint by following proper procedures.
Trump wants us to call the whistleblower's sources "leakers" even though he doesn't know who the whistleblower was any more than we do, because that will distract us from the contents of the call. It's the oldest trick in the presidential book, and I'm not buying into it, and you shouldn't either.
2. "Trump was just being Trump, spouting off about something the way he does, and it shouldn't be taken seriously as "witness-tampering" or anything like that."
I'm not buying into this one, either. Trump has managed to use this as smokescreen—by saying a lot of crazy stuff, time after time after time, he can avoid taking any responsibility for any of it. I'm pretty sure this is a conscious, Bannon-inspired strategy. But his words have real consequences; people act on what they think he wants them to do, because he is the president of the United States. He should not get a free pass because he talks like a dope most of the time.