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, 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