Yesterday, there was a troubling story in the New York Times that President Donald Trump had two conversations with witnesses in the Mueller investigation about matters touching on their statements to investigators. Both former Chief of Staff Reince Priebus and White House CounselDonald F. McGahn II reportedly were the subjects of inquiries by Trump that raised concerns over witness tampering and, in McGahn’s case, eliciting a false public statement. As I explained this morning on MSNBC’s Morning Joe program, I do not view the accounts as establishing witness tampering violations but the conversations were clearly inappropriate and ill-advised. Moreover, they can be legitimately pursued by the Special Counsel and fit a narrative that is being advanced by critics. The failure to respect legal and ethical boundaries has been a constant and continuing problem for this White House. Nevertheless, there is an obvious defense to such charges and, as I explained on MSNBC, people are again ignoring the actual criminal elements to this offense. Putting that aside, there should be concern that this is yet another tripped wire that should have been avoided.
First and foremost, I am not especially concerned about the account involving Priebus if the current facts are accurate. Trump reportedly asked Priebus how his interview had gone with the special counsel’s investigators and whether they had been “nice.” It was exceptionally ill-advised to ask the question. Trump should avoid all discussion, even passing references, to the role or statements of witnesses in the investigation. Nevertheless, it is hard to see why this would be a case of witness intimidation or tampering.
The McGahn matter is a bit more serious. According to reports, Trump told an aide that McGahn should issue a statement denying a New York Times article that the president once asked him to fire the special counsel. McGahn reportedly refused and reminded the president that he had indeed asked McGahn to dismiss Mueller. Trump reportedly noted that it was not true, as reported, that McGahn threatened to resign, but McGahn said that he did indeed make that threat to high-ranking officials at a time (though perhaps not to Trump himself).
The incident bears uncomfortable semblance to the role Trump allegedly played in crafting the misleading statement from Air Force One on the meeting of Donald Trump Jr. with Russians in Trump Tower.
Is this another self-inflicted wound? Yes. Is it witness tampering? Probably not. Trump was seeking a public statement to spin a scandal. McGahn had already given his account to Mueller. There is a difficult line to draw between what is political and what is prosecutable. The White House is a political operation and a president is allowed to direct statements in response to damaging stories. For a prosecutor to target a president, he needs to find an act that is well within the heartland of the criminal code. There are obvious defenses to this claim.
The federal code states in pertinent part:
18 U.S. Code § 1512 – Tampering with a witness, victim, or an informant
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process . . .
Notably, the code contains an express defense and is provable under the lower standard of a preponderance of the evidence:
(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.