Trump Comes Dangerously Close to Witness Tampering

(Bloomberg Opinion) -- President Donald Trump's Twitter feed — awash in daily musings, threats, cajoling, criticism and flagrant meddling in a federal investigation — is a font of information and evidence for Special Counsel Robert Mueller's investigators.

Monday's Twitter installment from the president sure looks like what any vigilant prosecutor might construe as "witness tampering":

Roger Stone, to remind you, is a political operative and long-standing Trump crony whose ties to the president began in 1979 when the late mob lawyer and fixer Roy Cohn first introduced the two men. Mueller, who is conducting a probe of possible collusion between Trump's 2016 presidential campaign and the Kremlin, is currently examining whether Stone pushed an associate, Jerome Corsi, during the campaign to get documents and emails that Russian hackers stole from Democrats and disseminated through WikiLeaks in order to undermine Hillary Clinton's presidential bid.

Corsi and Stone emailed each other in 2016 about all of this, and on Aug. 2, 2016 — about two months after Russian hackers first penetrated Democratic National Committee computer servers — Corsi told Stone that he was optimistic that more, "very damaging" information from WikiLeaks and its founder, Julian Assange, was coming. In an interview on the InfoWars radio show, in which he bragged about a forthcoming, "devastating" WikiLeaks drop, Stone said he spoke to Trump himself the very next day — Aug. 3, 2016. (He didn't discuss whether he and Trump spoke about the WikiLeaks documents.) On Aug. 4, 2016, according to a Wall Street Journal account, Stone also claimed in an email to another Trump operative that he had dinner with Assange on Aug. 3. (Stone later denied meeting with Assange.)  

It's clear that all of this would be of great interest to Mueller, and Mueller's recent court filings suggest that he's zeroing in on Stone. It's fair to say that Mueller might consider Stone to be a witness to the comings and goings of the 2016 campaign and related matters. And the president takes to Twitter and praises Stone's "guts!" for stating that he won't testify against him.

Trump has had similar praise for Paul Manafort, one of Stone's former business partners, who briefly served as Trump's campaign manager before being found guilty of bank and tax fraud last summer:

Trump's definition of an honorable person in this scenario is someone who refuses to "break" and cooperate with prosecutors against him — as Michael Cohen, one his former attorneys, has now done, repeatedly. During a “Fox & Friends” interview last summer, Trump criticized Cohen for "flipping" and didn't say no when asked if he was contemplating using his presidential powers to pardon Manafort.

Witness tampering in federal cases is defined as any effort to "prevent the attendance or testimony of any person in an official proceeding" as well as trying to prevent the production of documents and records in a proceeding. Tampering also involves preventing communication “by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense."   

Does publicly praising former advisers and associates who refuse to cooperate with law enforcement amount to witness tampering? And if a prosecutor makes a reasonable argument that it does, would the courts agree? The folks at the Lawfare blog pondered this very question — as well as whether someone like Manafort even counts as a "witness" — in a post last summer exploring how Trump's tweets had him "swimming in dangerous waters."

Lawfare noted that "the witness tampering statute requires proof beyond a reasonable doubt of specific corrupt intent on the part of the defendant." That would make it tricky for Mueller to accuse the president of tampering (he'd also have to show corrupt intent if he wants to accuse the president of obstructing justice in other ways, such as the firing of former FBI director James Comey, for example). Different circuit courts have also interpreted tampering in different ways and with different restrictions, adding another hurdle if a tampering claim against Trump was ever adjudicated.

But Lawfare noted that Trump's "public signaling" to Manafort was important even if Mueller didn’t treat it as “an isolated obstruction of its own." In short, Trump's tweets and TV interviews could "form part of a larger obstructive pattern — a part that exists outside of the exercise of core Article II presidential functions."

Trump, of course, probably isn't thinking of the Constitution or the rule of law when he repeatedly labels the Mueller investigation as a "witch hunt." All he's likely to be concerned about as the Mueller probe accelerates, and the wheels of justice roll toward him and his family members, is that everyone else should protect him. In those moments, he puts loyalty above the law, and speaks — or tweets — to his former compadres like a mob boss.

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

Timothy L. O’Brien is the executive editor of Bloomberg Opinion. He has been an editor and writer for the New York Times, the Wall Street Journal, HuffPost and Talk magazine. His books include “TrumpNation: The Art of Being The Donald.”

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