No, Trump Did Not Commit Criminal Witness Retaliation

I recently wrote a Washington Post column explaining that, while I viewed the moves by President Donald Trump against impeachment witnesses was wrong, it was not criminal as claimed by legal analysts like CNN’s Elie Honig. Yesterday, Honig responded by arguing in a column that he and “other former prosecutors” are quite confident that the action clearly constituted the crime of witness retaliation. While Honig does not actually explain how the President’s conduct specifically violated the stated elements in the federal code, even a cursory consideration of the elements of the crime belie his assertion. Trump’s actions with regard to Vineland and Sondland would not constitute criminal witness retaliation.

For the last three years, we have had a series of crimes declared as “clearly established” by former prosecutors based on alleged Russian collusion, Ukrainian collusion, and other controversies. Indeed, Honig most recently, insisted in the Ukrainian controversy that the crimes of bribery and extortion were clear as crime and impeachable offenses. In my recent testimony before the House Judiciary Committee regarding President Trump’s impeachment, I opposed the position of my fellow witnesses that the definition of actual crimes is immaterial to their use as the basis for impeachment — and I specifically opposed impeachment articles based on bribery, extortion, campaign finance violations or obstruction of justice. The committee ultimately rejected those articles and adopted the only two articles I felt could be legitimately advanced: abuse of power, obstruction of Congress. Chairman Jerrold Nadler even ended the hearing by quoting my position on abuse of power. Our only disagreement was that I opposed impeachment on this record as incomplete and insufficient for submission to the Senate.

Honig ‘s claim of criminal witness retaliation fares no better than his earlier assertions of established criminal conduct. He is simply wrong that these actions could be maintained as criminal acts. As I stated in my column, this does not mean that the actions are not objectionable even reprehensible, but they are not criminal. I was highly critical of the move as unnecessary and presumptively retaliatory. I was particularly harsh in my statements about the brother of Vindman being moved as akin to a medieval blood punishment. The fact that this looks like retaliation however does not mean that it meets the test for specific crime of witness retaliation.

Crimes have elements and those elements are essential unless, it seems, the accused is Donald Trump. CNN has particularly been a font of claimed clear criminal acts by Trump, a place with viewers can be assured that the evidence is clear and the crimes established.

Now let’s look at this crime. First and foremost, Honig notes that either obstruction or tampering “arguably could apply” also as criminal charges. I addresses these crimes in my column but it is important to note the clear disconnect in this logic. Honig is saying that the moving of a witness like Vindman can be obstruction or tampering “after” the trial is over and he has given his testimony. There is no obstruction of a past trial, particularly one where the defendant was acquitted. It is not unclear how Honig believes that a later transfer tampers with testimony that has already been given in a case that is closed. Such a retroactive theory of witness tampering and obstruction would defy logic. It is like charging someone under 18 U.S.C. §594 for intimidation of voters by showing up at a former polling place brandishing a weapon — long after the election was over. It is hard to see Honig’s case for influence testimony that has already been given in a trial that is already over of a defendant who is already acquitted.

Now let’s specifically deal with Honig’s insistence that this is clearly witness retaliation. In the 1980s, Congress strengthened protections for witnesses with new provision on 18 U.S.C § 1512 which augments the federal witness tampering law under 18 U.S.C. § 1503, which broadened the definition of witness tampering. The structure of 18 U.S.C. § 1513 is similar to that of 18 U.S.C. § 1512 but is viewed as broadening its application. However, it still has criminal elements and those elements undermine credible suggestions that this falls within the statutory definitions for this crime.

On the elements, there are immediate problems with this claim. Prosecutors will sometimes brush over elements, they are also regularly chastised by courts by doing so. Here are the elements from the relevant part of 18 U.S.C. 1513:

e)Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.

Immediate problems arise from the language. First, there is the question of whether a congressional committee in this matter involves providing information to a law enforcement officer. However, even assuming that it does, there is the element of given information of “the commission or possible commission of a Federal offense.” A “federal offense” is defined, in 18 U.S.C. 3156 (a)(2) as “any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.” The House admitted that this was the first impeachment based on non-criminal articles of impeachment and the witnesses, including Vindman, agreed that they did not see the commission of a criminal act in their judgment.

Second, there is the suggestion by Honig that, once a witness testifies at a congressional committee, they are effectively immune from transfers deemed inimical or negative for their careers. Even outside of the White House that would be a rather bizarre rule. It would mean that, regardless of whether testimony is accepted as true or given according to proper guidelines, the witness is somehow protected for all time or at least some undefined period after the trial is over.

This becomes even more bizarre in the context of the White House where courts have been clear that a President may select his staff and advisers as virtual at-will employees. So, according to Honig, the President is required to continue to work with an official on a daily basis who accused him of sacrificing national security for personal gain and then lied about it. Moreover, Vindman would have some vested hold on a discretionary position until he, not the President, decided that he would move on. In this way, Congress would need only to line up staffers to testify against the wishes of a president to fill the White House with staffers who would be unmovable for the president. Indeed, they could hold such a hearing at the start of an Administration to freeze the staff of the prior president in place. Vindman was not fired but transferred back to the Pentagon with dozens of other staffers.

The same is true with Sondland. Honig suggests that a president is required to keep an ambassador and work with him despite the fact that Sondland basically called him a liar. An ambassador must speak on behalf of the president on matters of policy. The prior testimony can be viewed as creating an uncertainty as to the ability of Sondland to speak for Trump or Trump’s own veracity. It also suggests to European allies that the ambassador no longer enjoys a close relationship with the President, which is manifestly obvious.

Honig also does not address the main point of my article. While I criticized the President for these actions, Sondland and Vindman disobeyed a direct instruction not to testify while the White House challenged the right to call witnesses. They did so without waiting for a court order, as did other called witnesses. That would be viewed as a legitimate basis for transfer or termination by most courts in a White House position.

We can clearly have good-faith disagreements on some of these points. However, I fail to see how all of these barriers to a criminal charge can be dismissed or how Honig and others can claim that this is a compelling basis for a criminal charge. Viewers may be thrilled or relieved to hear such analysis but it is clearly not reflective of the actual elements of the crime. Even after a long litany of such dubious and rejected criminal claims, viewers want to hear that this President is a proven criminal. However, legal analysts are asked to offer unvarnished and unbiased views of the law.

The test is whether such a conclusion would be sustained if the name of the defendant was not Donald J. Trump. I do not believe that this view is meets that test.

43 thoughts on “No, Trump Did Not Commit Criminal Witness Retaliation”

  1. I’m usually more than willing to defer to your judgement but in this one not so sure. Seems like you’re reaching pretty far here to downplay a smoking gun. I mean, Congress is the Legislative Branch, right? And the Capital Police is a full service law enforcement agency that answers to the Legislative branch not the President or Judiciary. Being considered a law enforcement officer doesn’t always constitute a badge and a gun and uniform. J Edgar never made an arrest originally, but he was still considered a officer of the court. And there are Congressional officers, so I think its a real stretch to not see Congress as law enforcement since they not only have the power to make law but to direct their own police force. And as for being immune from transfers, I don’t think that’s necessarily the question, he wasn’t up for one. He testifies against the President, then the President is acquitted, and within a few days he’s suddenly loses his position at the white house, which obviously is considered a valuable position to him or anyone and I’m sure a coveted one regardless of party in power. Suddenly he’s just transferred away, and you want folks to believe it wasn’t retribution? I mean its kind of a crime hiding in plain sight. Maybe that’s the problem I don’t know. But I don’t get this column professor. I read your stuff quietly and have for more than a decade and it always seems like you gravitate everyone back to the central Constitutional realities of what’s legal, not legal, Constitutional, Unconstitutional, etc. Always seem so impartial and centered. But this one I can’t seem to get my head around your position. If you have a Commander in Chief who has the bully pulpit as it were from his bedroom with a cell phone and can tweet trash some citizen or member of the military, both under his governmental authority, making that private citizen or individual in the military a hated target among what he calls his “tough guy followers”? Easily making him a target for harassment, threats and even potentially attacks, whether new or increased threat to his safety and family. I mean the President is using Twitter to attack private citizens, businesses, damaging them publicly and causing hate campaigns against them. And you don’t see any witness retaliation or pressure in that? Really? You think this transfer, days after the President was acquitted and months before his assignment was up, you think that was innocent? Its all just coincidence. Is that really your position here? I’m not saying your wrong, I’m just saying I can’t even begin to make those stretches here and I don’t see how you are either.

    1. And by the way, I finally listened to your friend Mr Barr and was kind of surprised based on the media’s portrayal of him, once I got to actually hear him speak. He came across as highly intelligent and fairly noble with regards to doing the right thing and not bowing to pressure, even from the President. And in this interview I just saw, he even addressed these tweets as quote “making his job impossible” and the job of the justice dept impossible. It took a lot to basically tell this President to stop tweeting about the Justice Dept but he did it, looked right at the camera at one point like he was talking to him. And it was pretty clear he was referring to the current concerns of public witness tampering or retaliation by publicly harassing, smearing and targeting witnesses for attacks from his followers and damaging witnesses reputations and even safety, by the holder of the highest most powerful office in the land, against a private citizen or military personnel. I mean we’re not talking about an average citizen here, we’re talking about the Executive of the United States, the President. As Daniel Day Lewis said in Lincoln, “Clothed in Immense Power”. And he is. So how does his public smear campaigns to silence witnesses and frighten them into hiding and not speaking further, how does that not constitute tampering and retaliation?

  2. Vindman was transferred to what has been reported to be a rather cushy job at the war college — hardly retaliation or tampering. As CIC, the president could have demanded and probably gotten an Article 32 hearing to review the entirety of Vindman’s conduct.

    Sondland’s written statement to the IC said that he believed there was a quid pro quo. It was not until he was questioned by a Republican on the IC that it was shown his belief was based on hearsay x 6 and that “nobody on the planet” told him that they had direct, first hand knowledge of a quid pro quo.

  3. Too bad the impeachment articles didn’t clearly spell out the attempted bribery/extortion, activities that I thought were unlawful. Since Vindman (not Vineman) had planned to move on shortly, affecting his employment by escorting him out certainly looks like retaliation. And there’s the tweet where Trump made disparaging remarks about him. So it looks like Trump really can do anything he wants, legal or illegal, ethical or not, and it’s all ok. (sigh)

  4. Some pigs are more equal than other pigs but a honig isn’t one of them. Same old same old BS that automatically cancels itself off as the trough sloppers attempt to get more billable hours from and origanization that is heavily in debt and can’t pay it’s own bills. Bye Bye Non American Lies and take the DNC with you on your way out.

  5. On trend. Democrats claim Trump committed crimes, when the facts and the law shows he has not.

    This is tampering with voters by molding information to affect the next election.

    Bias in reporting is one thing. But deliberately misstating facts is quite another.

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