Below is my column in The Hill Newspaper on the most recent allegation of criminal conduct by President Donald Trump or his family. Added to the ever-lengthening list of clear crimes is now witness tampering despite the fact that it does not come close to any prior definition of that crime. Both Professor Lawrence Tribe and CNN Legal Analyst Norm Eisen (Eisen previously said that Trump’s conversations with James Comey could constitute witness tampering) have claimed that Trump’s dictating or contributing to the statement of his son, Donald Jr., on the Russian meeting establishes the basis for such a charge. I obviously disagree.
Here is the column.
This morning, the Washington Post reported that President Trump dictated the statement issued by Donald Trump Jr. about his infamous meeting with Russians offering dirt on Hillary Clinton. The ink on the story was not dry when the airways were again crowded with experts claiming a new crime had been committed.
Harvard Professor Laurence Tribe stated that the dictating of a misleading statement about the meeting could constitute witness tampering. This is a new criminal allegation to add to an ever-lengthening list that, if true, would make the Trumps the greatest crime family since the Gambinos.
Tribe previously found compelling evidence of obstruction of justice, criminal election violations, Logan Act violations, extortion and possible treason by the president or his family. He also found grounds for impeachment while declaring that the Constitution clearly bars a self-pardon by Trump. Tribe, whom I have long respected as an academic, is not alone. It appears that every tweet or leak brings a new and compelling basis for indictment or impeachment or both.
There is an open frustration among many who want confirmation that we are finally close to a Trump indictment. It is neither satisfying nor entertaining to consistently say that this is far short of any cognizable criminal case. However, the cable news is filled with experts assuring viewers that we are closer than we are. It is like finding a scientist willing to assure viewers that the moon is half its actual distance. It may be an exciting prospect, but it makes any attempt a dangerous pursuit.
The latest story is a case in point. The Post reports that President Trump ignored staff recommendations and dictated the statement for his son to release. The statement said that Donald Jr. and the Russian lawyer had “primarily discussed a program about the adoption of Russian children” and that the subject of the meeting was “not a campaign issue at the time.” That misleading statement would deepen and extend the controversy. The meeting was clearly set up on the understanding that the Russian government wanted to help get Trump elected and would share damaging information.
However, a misleading statement is not a crime in itself — or half of Washington would be serving time. It is spin. It turned out to be remarkably ill-advised and self-defeating spin, but it was a classic effort to emphasize the least damaging part of the story. It was also dumb. The president knew there was a special counsel in the field investigating his role into a possible effort to obstruct the Russian investigation. There were various options in responding to the New York Times story about emails to Trump’s son.
This was the worst of all available options. The president prevented his staff from insulating himself from the story and creating some crush space between him and his controversy. By inserting himself into the controversy, he harmed both his and his son’s legal position. Trump, once again, made the White House the center of gravity for the scandal rather than Trump Tower or the campaign.
For those of us who have been skeptical of claims of any prima facie crime, it remains perplexing to watch the president constantly fulfill the narrative of his opponents by seeking to control and spin events. He is someone who is used to controlling an image or brand. It is difficult for him to resist framing a story, despite every indication that his involvement is creating the appearance of criminality, even without any strong evidence of a crime. He is like the guy who constantly runs down the street whenever a car alarm goes off.
Special Counsel Robert Mueller would now be within his mandate to look into Trump’s involvement in this highly misleading public statement. That will again broaden the investigation and place the terminus at the Oval Office. However, it still does not make it a crime. Take Tribe’s witness tampering claim. The statutory provision in 18 U.S.C. 1512 addresses an effort to “corruptly persuade another person” to “influence” testimony of that person in the withholding of information. This language has never been extended to a public statement of this kind.
First, there was no existing demand for testimony from Trump Jr. on this meeting. Second, there is no evidence that Trump told his son to lie about the email or the original understanding of the meeting. This was not coaching for testimony but a public defense. Third, even if this were construed to be about testimony, the law contains an express affirmative defense (that needs only be proven by a preponderance of the evidence) that “the conduct consisted solely of lawful conduct” and that the defendant intended to encourage truthful testimony. The Trumps have emphasized what the meeting primarily addressed while downplaying what it was intended to address. They did not address the original purpose in the statement.
Look again at the statement explaining Trump Jr.’s meeting with Russians: “It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at the time and there was no follow up. I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.”
Accounts of witnesses have supported the claims that it was a short meeting that lasted around 20 minutes, that they primarily discussed the Russian adoption issue, that it was arranged through an acquaintance, and that there was no follow-up. It is also true that the adoption issue “was not a campaign issue at the time.” What is misleading about the statement is what was omitted: that Trump Jr., Paul Manafort and Jared Kushner went to a meeting ostensibly set up to collude with the Russians in the exchange of dirt on Clinton.
However, politicians in Washington routinely ignore damaging facts while highlighting less damaging facts. Ironically, the Clintons were famous for such spins. Indeed, with knowledge of an ongoing investigation in the field, Clinton repeatedly changed her account of the use of a personal server to transmit sensitive and classified information. It went from an assertion that no classified material was sent (which is untrue) to a statement that she never “received nor sent any material that was marked classified” (which is also untrue).
Others in the email controversy showed equally loose understandings of the truth in trying to spin out of the scandal. Debbie Wasserman Schultz publicly denied colluding to help Clinton defeat Bernie Sanders, which turned out to be untrue. Her replacement as chair of the Democratic National Committee, Donna Brazile, lied about her hacked emails being false and not sharing CNN questions for the presidential debates with Clinton.
If spins or selected accounts were criminal matters, Pennsylvania Avenue would be jammed with thousands of officials being frogmarched to the federal penitentiary. It would also allow a dangerous foray of federal prosecutors into political statements, potentially criminalizing some spins but ignoring others.
This was the worse of all spins. Rather than dampen down a controversy, it deepened it. Ironically, President Trump himself gave the special counsel an opportunity to further expand his investigation. However, if Mueller wants to investigate half-truths in Washington, this will be a permanent, multigenerational investigation. While a half-truth can be denounced as a half-lie, it does not make it a whole crime.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.