TwitterGate: What Did Trump Tweet And When Did He Tweet It?

Below is my column in the Hill on the latest twitter controversy.  While Trump counsel John Dowd has insisted that he merely used “sloppy” drafting, news organizations are reporting that White House Counsel Don McGahn told Trump (before the firing of National Security Adviser Michael Flynn) that Flynn had misled FBI agents in his interview.  In yesterday’s press conference, Sarah Sanders refused to say when Trump first learned that Flynn had lied to the FBI.  That brings us back to Dowd and the breathtakingly dumb mistake in sending out a tweet to millions with an admission against interest under the President’s name.

Here is the column:

It is truly a scandal for our times, the weekend many in Washington were asked,”What did President Trump tweet and when did he tweet it?” The Watergate-esque question has arisen after yet another Trump tweet gone horribly awry, smashing into an only recently reconstructed defense by his legal team. After the plea agreement with Michael Flynn, in which he agreed to cooperate with the special counsel, Trump sent out a tweet that sent gasps through the Beltway: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

Among the more than 107,000 “likes” were the entire legal team behind special counsel Robert Mueller. The reason? Three words: “and the FBI.” The tweet states that when Flynn was “fired” on Feb. 13, Trump already knew that he had lied to the FBI. However, the next day, Trump reportedly buttonholed then FBI Director James Comey to ask him to go easy on Flynn, saying, according to Comey’s contemporaneous memo, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Trump this weekend denied that he ever asked Comey to drop the investigation against Flynn.

If Trump knew of Flynn’s crime and pressured the FBI director to drop the investigation, it would materially change the current status of the obstruction of justice investigation. This is why the tweet would be viewed as a “statement against interest.” Trump is saying that he was aware in February that Flynn not only lied to the FBI but did so on the subject of prior communications with the Russians.

Trump has repeatedly undermined his defense (and those of some of his closest aides) with ill-considered and ill-timed tweets. This one, however, is cataclysmic. The response of the White House the day after the tweet disaster only made the situation worse and, if possible, more bizarre. The White House declared that Trump was not the author of his tweet but that this truly moronic message was penned by one of his lawyers, John Dowd, who reportedly told ABC that he was responsible for the “sloppy” tweet.

First and foremost, a criminal admission against interest is not “sloppy,” it is suicidal. Misspellings and typos are sloppy. Saying that you have known about the crimes of a close aide for almost a year is a bit more than an omitted preposition or a double negative. (This follows another “sloppy” moment by the Trump legal team, when personal counsel Ty Cobb was overheard at a popular D.C. restaurant discussing undisclosed material documents being withheld by White House Counsel Don McGahn.)

Second, this might not help. The White House previously has stated, and various courts have repeated the statement, that Trump’s tweets are his official presidential statements. Moreover, statements of counsel are generally treated as statements of clients. The White House is clearly moving to deny that the words accurately reflected the president’s position, and that retraction will blunt the legal impact. However, it is now part of an already conflicting array of statements made by Trump or on his behalf.

Third, Mueller may not believe Dowd’s account. The admission of knowledge of a crime places this tweet squarely within Mueller’s investigation. If Dowd is lying about this being entirely and solely his work, the situation will get even worse for both of them. This could make Dowd a possible witness, as opposed to counsel in the investigation. The attorney-client privilege has an exception for evidence of crimes or fraud.

Finally, these Twitter misfires are simply getting old. The fact that Trump’s lawyers are apparently little better in showing a minimal level of control and foresight is chilling. This tweet made a highly precarious situation far, far worse. It is not clear what is more bizarre: the fact that, after Trump tweets were used repeatedly by courts against his administration, the president still insists on tweeting, or that he is allegedly using counsel to do so.

There is, of course, another option, which is to stop tweeting. It is not even a necessity to stop all tweeting. Trump (or his designated “tweet counsel”) can still hold forth on everything from Rosie O’Donnell to radical Islam. Just stop tweeting about pending cases and investigations.

What is truly breathtaking is that Trump had a clear, consistent defense that he and his lawyer just tweeted away. The firing of Flynn created a firewall for the White House in the investigation. The administration tossed Flynn as soon as it reportedly learned of his misrepresentation to Vice President Mike Pence. He was a 24-day wonder who barely outlasted Anthony Scaramucci as a White House employee.

The Flynn “information” filed by Mueller actually had positive news for Trump in this respect: There is still no clear evidence of a criminal conspiracy with the Russians, and Flynn’s meetings were not particularly surprising for an incoming administration dealing with developing Russian and Israeli policies. Just as the Trump team seemed on terra firma, however, the ground shook with another self-defeating tweet.

It is death by tweet, and it is hard to watch. If this was the work of Dowd, he is the legal version of Ambrose Burnside, the Union general described by President Lincoln as the only person capable of “such a coup as to snatch defeat from the jaws of victory.” Burnside repeatedly had trouble with bridges in battles. Just as he would have been wise to avoid those spans, the Trump White House would be wise to avoid those tweets, long the forum for its repeated and greatest self-inflicted wounds.

That is assuming however that there is some intelligent design at play. Instead, we are more likely to simply have a new tweet declaring, “Lawyer admits to mimicking my style and making incriminating statements against interest. Sad!” And the tweets go on.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.