Below is my column in the Hill newspaper on the most recent suggested crime committed by President Donald Trump or his family. This allegation focuses on a greeting sent through President Trump’s attorney, John Dowd, to Special Counsel Robert Mueller. It appears that Trump is obstructing if he voices criticism or appreciation of Mueller. Dowd was in the news again yesterday in taking it upon himself to object to pre-dawn raid on the home of Paul Manafort.
Here is the column:
The election of President Trump appears to have created a type of professorial parlor game of how many crimes one can ascribe to him or his family on a daily basis. It seems like Trump cannot jump into someone else’s golf cart without an expert claiming a possible charge of peonage or grand theft auto.
The latest addition came from Notre Dame professor Jimmy Gurulé, who said that the recent report of Trump extending his “appreciation and greetings” to Special Counsel Robert Mueller may constitute intimidation of a prosecutor or obstruction of an investigation. Call it intimidation by salutation. Trump and his family have already been accused of litany of crimes that would make mobster Lucky Luciano jealous.
Just to keep score, experts have thus far identified the following possible crimes: obstruction of justice, witness tampering, criminal election violation, Logan Act violations, Foreign Agents Registration Act crimes, criminal false statements, perjury, racketeering, extortion, treason, and a variety of loosely defined conspiracy crimes. With the exception of an endangered species violation (and the day is still young), Trump appears to have run through most of the criminal code like a type of presidential hurricane that spins off criminal tornados in his wake.
The most recent crime concerns a USA Today story in which Trump counsel John Dowd acknowledged communications with the special counsel and noted that he conveyed how much Trump “appreciates what Bob Mueller is doing.” Dowd said that the president asked him to convey his “appreciation and greetings.”
Gurulé, a former U.S. assistant attorney general under President George H.W. Bush, told LawNewz.com that the message from Dowd could construed as intimidation or an effort to influence the investigation. Gurulé appears to view such a friendly expression as equivalent to the bacio della morte, or “kiss of death.” Of course, the use of Dowd really ruins the moment. Here is how a true bacio della morte for Mueller should go.
Mueller and Trump are at a New Year’s Eve party in Havana and Trump goes up to Mueller and says, “I wanted to send you my appreciation and greetings.” With that, he kisses Mueller on the lips and says, “I know it was you, Bobby. You broke my heart.”
Mueller then flees the island only to be later bumped off in Lake Tahoe by Dowd while reciting a Hail Mary. Now that is intimidation. Having your lawyer convey your greeting and appreciation falls a bit short of a Mario Puzo moment.
There is a section of the criminal code that deals with threats against federal officials, but it is generally limited to threats to assault, kidnap or murder such officials. It seems difficult to construe “appreciation and greetings” as a threat to murder Mueller. Even some of the most notorious greetings would be hard to convert into a Section 115 charge like Hannibal Lecter’s chilling “hello, Clarice” in Silence of the Lambs. It is even less so if conveyed to Agent Starling through the warden.
There is also the possible extension of the obstruction crime to include the new crime of intimidation through salutation. The problem is that past cases of threats against prosecutors have been quite clear and stark. For example, in United States v. Fernandez, the Eleventh Circuit in 1988 found obstruction when the brother of a defendant intentionally followed prosecutor, forcibly ran into him, and told him that he had better get some protection. That is a bit different from a potential target conveying through a lawyer that he appreciates the work of a prosecutor.
Once again, there seems little concern of what the country would be like if such crimes were so easily satisfied that expressing appreciation for a prosecutor could be deemed a form of obstruction. If extending “appreciation and greeting” makes Trump a criminal intimidator, Hallmark executives would be virtual serial killers.
There is another possibility. Trump could be trying to clean up a mess of his own making in previously discussing the firing of Mueller. If so, this is a clumsy act of overcompensation. It seems highly unlikely that an experienced criminal defense lawyer like Dowd would be a party to an express or implied threat of any kind. Likewise, I expect Mueller needs little reinforcement to feel appreciated but he is also one of the least likely to feel intimidated by it.
All experts are in agreement on one thing: It would be far better if Trump could try to detach himself (and his tweets) from the investigation. Getting notes of appreciation as a special counsel is just a tad awkward and even a little creepy. Moreover, despite my reservations about Mueller being appointed, given his past history with James Comey, I supported the appointment of a special counsel after Trump fired the FBI director.
I have previously stated that Mueller’s termination would be a serious mistake and that he needs to complete this investigation without interference. The good news is that Trump may have finally reached the same conclusion. The bad news is that he is still struggling with the concept of professional boundaries.
Sigmund Freud once said that “sometimes a cigar is just a cigar.” Well, sometimes a greeting is just a greeting. That appears the case here. Of course, context can be everything. I saw an old Valentine once where a boy was shown firing three rounds into a heart while proclaiming “I am aiming straight at your heart.” If Trump sends that belated Valentine card to Mueller in August, we can talk.