Why Trump’s Tweets Are Interesting to Mueller

(Bloomberg Opinion) -- It’s worth focusing on the news, reported Thursday by the New York Times, that special counsel Robert Mueller is scrutinizing President Donald Trump’s tweets for evidence of obstruction of justice. Mueller’s efforts may not be surprising to those watching the case, but they should draw our attention to two legal aspects of obstruction:

Obstruction of justice can take place in full public view. And obstruction can involve statements that would otherwise be protected as free speech.

Begin with the public nature of Trump’s tweets – and how that can be part of an obstruction charge. Rudy Giuliani, a lawyer defending Trump, told the Times, “If you’re going to obstruct justice, you do it quietly and secretly, not in public.” But that’s just a generalization. It isn’t much of a legal defense.

Obstruction of justice as defined under federal law – as relevant to Trump – basically includes two relevant elements.

One is that the obstruction must be motivated by a corrupt intent. That means, roughly, that the person doing the obstructing isn’t doing his job but is seeking some sort of illicit gain: like self-preservation.

The other relevant element is that there has been an attempt to persuade someone else to hinder or delay governmental proceedings.

Both elements could have public components.

It isn’t easy to prove corrupt intent. One way is if someone openly states that he’s trying to affect an investigation. Trump hasn’t explicitly said he wants to end the Russia investigation to save his own skin. But he has said plenty of things that could be used as proof of such a claim.

For example, the timing of his posts on Twitter could be used to suggest that Trump was trying to influence Attorney General Jeff Sessions or former FBI Director James Comey to drop the investigation in its early stages.

Corrupt intent could also be shown through contradictory explanations Trump gave for his criticisms of the investigation. The contradiction implies the falsehood of at least one or maybe both explanations. Tweets could be part of demonstrating the contradictory explanations that Trump has indeed given.

The fact that these Twitter statements were made in public doesn’t detract from their value as evidence. Taken together, they can be used to create a picture of what Trump was thinking – even if he denies that any one particular statement reflected his actual thoughts.

As for the element of attempted persuasion, the tweets could prove even more useful. They constitute strong evidence of Trump trying to apply pressure to his subordinates. This could, for example, buttress Comey’s testimony about what Trump said to him in private.

So when Giuliani says that obstruction usually takes place in private, he might be right insofar as most people try to hide corrupt intent and the fact that they may be trying to influence an investigation. But Trump seems remarkably unguarded about his beliefs, and almost totally unguarded about his desire to end the Russian investigation. His public statements are therefore highly relevant.

That leaves another possible objection, which Giuliani hasn’t yet made but  could soon: that Trump’s Twitter statements are a form of free political speech, and shouldn’t be made part of a criminal investigation.

The First Amendment does apply archetypally to political speech. Any doubt as to whether a given statement is politics or a criminal act should be resolved in favor of the political interpretation.

Yet it’s important to remember that obstruction of justice is a crime often committed by words – much like frauds or threats of violence.

Such crimes do not receive First Amendment protection. If they did, the government would be unable to criminalize a wide swath of dangerous and harmful behavior.

The way the courts and free-speech scholars typically think about this issue is to explain that the criminal law penalizes a course of conduct, such as fraud or obstruction of justice. The conduct is not subject to any constitutional protection. Words that are used to perform the criminal conduct can therefore be punished as part of the crime.

So far, even in our era of growing free-speech absolutism, courts have not held that special free-speech protections should be applied to crimes committed verbally. The same goes for words people speak that are then introduced into evidence as proof of criminal intent or conduct.

That means Trump’s Twitter utterances are fair game to be evaluated by prosecutors to figure out if they are part of a course of criminal conduct – or if they are evidence of crime.

Think of it this way: Trump is free to say what he wants politically. He is not free to use his words to try to pervert the course of justice.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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