Trump’s Tweets Are Cathartic and Costly But Not Crimes

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on the most recent claim that the tweets of President Donald Trump concerning the Special Counsel are acts of obstruction.  Once again, there is a blind eagerness to claim a prime facie criminal case against Trump. However, the implications of such a charge are enormous. It would mean that a subject or target of an investigation could be criminally charged for publicly denouncing the prosecutors or their investigation.  While it is certainly true that a president is not just any investigatory subject and has powers that do mean a menacing meaning to such tweets, it would radically extend the scope of obstruction into more ambiguous areas.  In the end, this is still the exercise of free speech in this context.

Even for a morning Trump tweet, the blast on Wednesday had the feel of a command rather than a comment: “Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now.”

It is the “right now” that gave the presidential tweet a sense of urgency for some and desperation for others. For a man who warned people not to expect “Perry Mason” moments from his confronting dictator Vladimir Putin over Russian interference in the  2016 presidential election, President Donald Trump seems to tweet them daily like some guy jumping spontaneously up in a courtroom and yelling, “It’s not me!”

The ill-advised tweet was immediately held up by Trump’s opponents as clear evidence of obstruction of justice in, again, pressuring Sessions to fire special counsel Robert Mueller. California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, declared soon after the tweet: “The President of the United States just called on his Attorney General to put an end to an investigation in which the President, his family and campaign may be implicated. This is an attempt to obstruct justice hiding in plain sight.”

It is indeed in plain sight, but it is also plainly not a crime. If Trump’s tweet were used as the basis for a criminal allegation, it would reduce Mueller from hunting Russian collaborators in our presidential election to punishing presidential trolling on social media. Many of us have criticized Trump’s tweets, but those who are arguing for a tweet-based indictment should consider implications of such a prosecution.

Trump continues to ignore the universal advice of sympathetic lawyers and Republican politicians to stop tweeting about this criminal investigation. From the outside, Mueller’s case thus far for any criminal conduct by Trump of obstruction or conspiracy is exceptionally weak. For that reason, a rational approach would be to let the investigation go forward, supporting it as a way to clear any lingering public doubts about Trump’s electoral victory. Trump’s continued tweets only fuel doubts by making the president appear obsessed and unnerved.

Moreover, the worst possible course at this stage would be for Sessions to do as Trump has demanded. Sessions correctly recused himself from this matter upon the advice of career officials and ethicists at the Justice Department. Not only would Sessions have to violate that recusal position, but the order to terminate Mueller and his investigation would trigger a cascading series of events that would not turn out well for this administration. Sessions would likely have to fire Deputy Attorney General Rod Rosenstein and others at the Justice Department. The decision would write the first count of impeachment for the House of Representatives if it switched hands in November.

Tweets do not constitute obstruction of justice

Putting all of that aside, those who insist that these tweets constitute obstruction of justice are dangerously misinformed. Subjects and even targets of investigations do not surrender their First Amendment rights.

Trump insists that he is innocent, and he might well be. He views this investigation as a partisan effort by Justice Department officials with expressly hostile views of him and his candidacy. He has every right to speak publicly about the allegations against him. He notably has not used his inherent powers to take action against Sessions, Rosenstein or Mueller.

When the Clintons were under investigation in Whitewater and related allegations, they and their associates continually attacked the “vast right-wing conspiracy” allegedly behind the effort. They savaged the reputation of independent counsel Kenneth Starr. There were no calls for obstruction prosecutions coming from many of the commentators and members calling for such prosecution this week.

More important, loose talk about such tweets as obstruction continues to ignore the legal definitions of obstruction. There are various such provisions, but none would fit this type of assertion of innocence or criticism of an investigation. If it did, much of our political discourse could be charged as obstruction. There is no evidence of such willful actions as “bribery” under Section 1510 of Title 18 of the U.S. Code.

Even under the broader definition inSection 1505, these tweets do not represent someone who “corruptly” endeavors to obstruct the proper administration of law “under which any pending proceeding is being had before any department or agency of the United States.”

Trump’s tweets have backfired in the past

This does not mean that Mueller cannot include these tweets in a report detailing inappropriate statements and conduct by Trump. The president’s tweets proved costly in the immigration litigation in giving the courts ample ammunition to shoot down his executive orders.

I disagreed with those decisions in their reliance on tweets as opposed to the conventional record of review. Yet, it took more than a year to get the Supreme Court to reverse the decisions of the lower courts.

As a public figure, Trump is speaking out against what he views as unfair and partisan allegations. He clearly does not believe that the media are a faithful and neutral source for such news. That fuels his desire to speak directly to his base on the basis for the investigation. Moreover, Trump’s modus operandi helps him in this respect. Trump vents not only on this investigation but on every controversy from North Korea to immigration to NFL protests. He is often criticized for inflammatory and inappropriate language.

In other words, this is not a case where an otherwise circumspect president is lashing out on this one subject. The only consistent restraint demonstrated in past Trump tweets is the character count on Twitter. His tweets have regularly thrown his administration into chaos both domestically and globally.

On Wednesday, White House spokeswoman Sarah Huckabee Sanders simply said the president was “angry” and expressing that anger. Tweeting while angry is never a good practice for anyone, and it is downright dangerous for someone under investigation. However, the cacophony of tweets from this president has become a type of background drone as he repeatedly asserts his innocence and the guilt of his accusers.

That makes these tweets both cathartic and costly for Trump, but they are not crimes.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley

317 thoughts on “Trump’s Tweets Are Cathartic and Costly But Not Crimes”

  1. Dear mr trump do not create the environment of hatred . we are getting nothing from this but depression , sorrows and so many sufferings . you made the whole hell .

      1. I realize that Anonymous can’t do much more than post links, parrot the ideas of others, or make her bitchy little remarks that rarely have anything to do with any topic under discussion.
        As one of the “senior trolls” here, Anonymous has good reason for remaining anonymous.
        That troll seniority doesn’t really carry any weight.
        I watched Anonymous post her worthess, insulting comments for years before starting to throw some of that crap right back atcha, Anonymous.
        But just stay secure in your anonymous little shell and make your empty, bitchy remarks when the mood strikes you, troll.
        I don’t think you have the capacity to do much else in any case.

        1. @Tommy:

          Please feel free to ignore any and all comments that don’t pass muster with you.

          1. I did that for months, and possiibly years, before taking a somewhat different course.
            May Anonymous and the 2-3 other low-life trolls here keep working up to their capacity, honing their skills, and staying secure wrapped up in their little anonymous blankets.

  2. On Sun, Aug 5, 2018 at 11:53 AM, JONATHAN TURLEY wrote:

    > jonathanturley posted: “Below is my column in USA Today on the most recent > claim that the tweets of President Donald Trump concerning the Special > Counsel are acts of obstruction. Once again, there is a blind eagerness to > claim a prime facie criminal case against Trump. However,” >

  3. What would happen if this famous and loved person were to speak at a university today? Would those on the left protest and would some try to burn the building down?

  4. Oh heavens to Betsy. They let me out of the asylum and the first thing I find is this piece of vegemite by Professor Turley?

    Leaving bloody fingerprints on a knife is not a crime. but it is evidence of a crime and might be relied upon by a prosecutor to convict you of a crime, if the knife is found next to the victim’s body.

    Stating that Trump’s tweets are not a crime is like saying that leaving your fingerprints on the bloody knife is not a crime. The statement is technically correct but hardly comforting to the poor slob whose bloody fingerprints were left on the knife next to the dead body.

    Professor Turley, why don’t you focus on whether the bloody knife is next to the dead body instead telling us that leaving bloody fingerprints on the knife is not a crime.

    1. Oliver;

      Not only is there not a knife, there’s no dead body! We do have 19 lawyers burning through taxpayer money which isn’t a crime either but ought to be.

      1. Trump (realizing that it looks like Don Jr. and Jared colluded) has now admitted collusion and is resorting to collusion is not a crime as his defense. How long before he’s left with his Fifth Avenue defense which is no defense at all?

            1. After awhile dealing with dimwits becomes tiring. You had your chance to have a reasonable discussion even if you lacked certain knowledge but you became a time waster and lied about what was said or not said. Enough of you Hollowood.

                1. Apparently not, Hollowood, based on the fact you provide spin instead of content and you know very little.

                  You are a fool.

                  1. Allan is a fraud.
                    Allan, I am deeply indebted to you for posting the link to the Trump Foundation’s 2016 tax return. Are you calm? Are you sitting down? The return, like Trump, is a fraud. David Farenthold of WaPo won a Pulitzer for exposing its lies. Here’s but a summary.
                    “In one of several memorable examples, Fahrenthold, who joined The Post as an intern in 2000, posted images of the handwritten list of charities he had contacted to ask whether Trump had contributed to them (almost none said he had). He asked readers for names of other likely recipients, receiving dozens of suggestions.

                    “With the assistance of Post researcher Alice Crites, Fahrenthold found that Trump had not donated any of his own money to the Donald J. Trump Foundation since 2008. Instead, he had solicited money from others. He further discovered that the foundation was not registered to make such solicitations, as required by New York state law. The revelation prompted authorities in New York to order the foundation to suspend further fundraising.

                    “He also found several instances in which the future president had spent money from the foundation to buy things for himself and his for-profit companies, potentially violating laws against “self dealing” by a charitable entity.”

                    Now, I previously linked you the State of New York’s complaint against Trump and his Foundation. You apparently were unable to comprehend this. The first 90 paragraphs of the complaint detail the illegalities of the Foundation. Trump hasn’t given any money to the Foundation since 2008. He has scammed others into giving money to it. He has used the money to promote his campaign at rallies with big phony checks that he did not fund–if any money ever changed hands at all. He used Foundation money for business and personal purposes. In short, Trump is a fraud, the foundation is a fraud, the tax return is a fraud.
                    Start reading.
                    And after having read all this material, I can only conclude that you Allan are also a fraud. You should hang your head in shame for trying to perpetrate your own fraud.

                    1. Hollowood, you have a problem with reading comprehension Take anything I said and take the IRS forms that any but you can find and try and make a case. You can’t. I provided 3 points to demonstrate where the article you quoted went wrong. You didn’t address any of those points because you can’t. All you did was recopy what you previously said.

                      You are a fool.

        1. Well, collusion was never a crime so “resorting to it,” is like saying the Duke Lacrosse team “resorted” to being actually innocent. Damn impish defendants!

            1. George, I like you/your post, but I’m short of time to post right now, careful please.

              Hollyweird appears to be from Pedowood is no doubt are more productive field to plow then Mespo.

              You may not have noticed but I have after 10-12 burn’t out puters melted down/Commie/Nazi McCain/Navy Intel, maybe? & who’mever is ph’in with family, including hacking our financials cards/crap/, 911 + Pentagon Many Key Navy Intel Killed …. careful where you tread. Thanks for you consideration.

              1. (sic fixed)

                Commie/Nazi McCain/Navy Intel, maybe? & who’mever is ph’in with my family, including hacking our financials cards/crap/, 911 + 2001 + Pentagon Many Key Navy Intel Killed that day …. careful where you tread. Thanks for you consideration.

                & ask yourself… Navy Intel just who is that & what do they do that you’ve never heard of? Hum?

              2. Oky, stupid enough to follow Alex Jones can’t be reasonably expected to write a coherent sentence so you’re off the hook for that.

                1. You’re no Wild Bill 99!,

                  I suggest you stop eating the dog sh*t you’re currently eating & switch to eating the fresh Chicken Sh*t you’ve consistently shown yourself here to be.

                  Trump Train 2020, toot, toot. LOL;)

            2. Mespo, the liberals are displaying incoherence and hysteria, the symptoms of TDS.

              1. George, with all due respect, I have to wait as I’m hearing there’s some stuff about to happen this month. All I can say is we’ll all see together if it’s. I’ll be posting it before it happens if I can.

          1. Oky you believe Infowars crapola so that probably makes you the stupidest person here.
            Expecting you to understand anything is quite a stretch.

      2. My dear, precious Mespo-

        I will give you credit for at least addressing the more important issue, which Turley fails to do. I will even give you credit for extreme bombasticity, if that is a word.

        But you, like the rest of us commenters here, are a mere peanut in the peanut gallery, Some peanuts, not to be named, lack nutritional value and serve mostly to create indigestion. Whether or not lacking in nutritious value, none of the peanuts in this particular peanut gallery have access to all the evidence.

        (I must say, however, that Trump is certainly behaving as if there is a dead body. Why would he lie repeatedly if there is no dead body?)

        So blather on, fellow peanut. I’m looking forward to seeing more evidence, as opposed to listening to peanuts spout about that of which they have no personal knowledge whatsoever.

    2. Obama, “You cain’t place a spy just to find one.”

      No SMOKIN’ gun

      The Deplorable Choir

      1. George, Great Job, kept, it up! The McCain /Hatch type are going to blow another of my PC’s, right now! Phk’em, I’ll buy a 100,000 more!

        Thanks for posting!

        Notice youtube killing the view count, LOL

        There’s no smokin gun… LOL:)

  5. Hey Professor Turley, I know you are on hols, but would love to hear your thoughts on the NYT’s latest editorial staff hire.

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