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.

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

  1. the problem with fighting back against lies or at least distortions such as Turley often does, is that a liar can make up ten new lies in the time it takes to refute the last one.

    so you’re always playing catch-up to the guys who lie habitually

    this is why in general, fibbers do well in politics.

    the Democrats are green with envy that the Republicans now have a skillful fibber at the helm

    1. “a liar can make up ten new lies in the time it takes to refute the last one.”

      Kurtz, that is what you get with people like Anon and Anonymous the Stupid

  2. “Crimes have elements and those elements are essential unless, *OF CORSE*, the accused is Donald Trump.”

    Fixed that for ya’ 🙂

  3. The republicans made it very clear, THIS President is above the law. The chosen one and stable genius is free to do what he wants, when he wants.

  4. Those audio tapes from the JFK, LBJ, and Nixon era are a historical gold mine, Elvis
    If it were not for Watergate and Alexander Butterfield, we may never have even known about these tapes.
    ( Nixon had a “voice-activated” system that recorded far more than the older, manually operated devices.
    Largely for that reason, Nixon had thousands of hours of tape…about 3,000 or so. JFK had maybe 300 hours, LBJ about 1,000 hours).

  5. OT: In an earlier thread another argued that the humanitarian crisis in Yemen was due to the West and Saudis which I thought was an unfair characterization of what is happening.

    Iran, Not Saudi Arabia, Is to Blame for Yemen’s Humanitarian Crisis

    “The Houthi rebels, who provoked the civil war in the first place by overthrowing the country’s democratically elected president, Abdrabbuh Mansour Hadi, in 2014, have received backing from Iran, with the Revolutionary Guards regularly supplying the Houthis with weapons, including long-range missiles.

    … Now, as the humanitarian crisis reaches a critical juncture, with an estimated 80% of Yemen’s 24 million population in need of assistance, aid organisations are finally waking up to the central role the Iranian-backed Houthis have played in creating the disaster.

    As humanitarian officials prepare to meet in Brussels this week — Thursday — to discuss the Yemeni aid crisis, the main topic of discussion will be what has been described as the unprecedented and unacceptable obstruction tactics being employed by the Houthis that are preventing vital aid supplies from reaching the country’s starving population.

    In what aid officials have described as “an extremely hostile environment”, the Houthis have been accused of harassment and obstruction as they seek to prevent humanitarian supplies from reaching the 6.7 million Yemenis who are said to be on the brink of starvation.

    In their latest bid to seize control of the aid distribution, the Houthis have recently imposed a 2 percent levy on all the international aid agencies operating in the country, prompting one aid worker to claim that the Houthis could be using the aid money to finance the war.

    Washington has responded by threatening to suspend much of its humanitarian assistance to Yemen on March 1 if the Houthis continue to insist on their aid levy. …

    As humanitarian officials prepare to meet in Brussels this week — Thursday — to discuss the Yemeni aid crisis, the main topic of discussion will be what has been described as the unprecedented and unacceptable obstruction tactics being employed by the Houthis that are preventing vital aid supplies from reaching the country’s starving population.

    In what aid officials have described as “an extremely hostile environment”, the Houthis have been accused of harassment and obstruction as they seek to prevent humanitarian supplies from reaching the 6.7 million Yemenis who are said to be on the brink of starvation.”

    Full story at:
    https://www.gatestoneinstitute.org/15581/iran-not-saudi-arabia-is-to-blame-for-yemen

  6. https://youtu.be/7nzivcv7Y8A

    Mespo,
    The Commander in Chief can probably arrange to have any member of the military transferred.
    Your comment reminded me of “the furniture fiasco”; special, expensive arraignments were made for a pregnant Jackie Kennedy at an Air Force Base.
    The details of the those (somewhat extravagant) expenditures got published when some junior Air Force officers proudly displayed the expensive furniture to the reporters they invited in. This audio is part of JFK expressing his anger at an Air Force General.

      1. These audios keep switching from one phone call to a different one.
        I’ll try to find the one that gives ONLY another part of the phone call with the Air Force General, without jumping around to other conversations.

    1. Love this because, a) these are the guys who recruited my dad into Washington, and b) JFK losing his shit about this is EXACTLY opposite of what Trump loses his mind over.

  7. The Professor said, “We can clearly have good-faith disagreements on some of these points.”

    Dang it! These are not good faith disagreements. They are partisan canards and smears. If it was not this, it would be something else the Dems would be raising hell about because they can not let Trump go un-attacked over something.

    Maybe you have to make statements like this to be able to get the WaPo to run your article, but it just isn’t reflective of Reality.

    Squeeky Fromm
    Girl Reporter

      1. Yes, you can! First, clear your mind of all preconceptions. Forget what political party you belong to. Start looking at things you know are true – aka facts. Forget what some idiot on TV says, or some newspaper. Just concentrate on the things that do not need someone to filter or interpret.

        Once you start, you will be able to start see Reality.

        Squeeky Fromm
        Girl Reporter

    1. If not this…yeah, they will continue to dig around anything they think smells funny. Let them, as the public will less and less buy this BS as they continue to dig a hole too deep to get out of. Like the boy who cried wolf…pretty soon they will just be ignored.

  8. Typically JT writes about some sideshow that lets him defend Trump while ignoring the mayhem in the center ring, this time of the now demoralized DOJ and Americans faith in their system.

    Trump spent the day lying again, and this time in service to his convicted campaign member. No, judge Jackson did not choose the place or circumstances of Manafort’s incarceration, nor was he in Cool Hand Luke accommodations. Solitary meant his own room with shower, storage, a bathroom and shower. Really. The guy he compared sentencing for pled guilty to 1 count – not Stones conviction on 7 – and prosecutors also recommended by federal sentencing guidelines.

    The president is a lying scumbag with too many working for him and not America. Many of his followers and seemingly most here will justify whatever BS he pulls, no matter how damaging to out traditions, rules, and public trust they are. To do this, they have to believe everyday the utterances of a guy who lies as often as he tells the truth – doesn’t matter to him. See above for just the most recent example.

    1. “Trump spent the day lying again, and this time in service to his convicted campaign member. No, judge Jackson did not choose the place or circumstances of Manafort’s incarceration, nor was he in Cool Hand Luke accommodations. Solitary meant his own room with shower, storage, a bathroom and shower. Really. The guy he compared sentencing for pled guilty to 1 count – not Stones conviction on 7 – and prosecutors also recommended by federal sentencing guidelines.”
      ********************
      Says the guy who never set foot in a federal prison, spoken to a federal prosecutor or dealt with a federal judge. Let’s just give you a continuing lie objection to avoid all the key strokes. Or better yet, how’s about we send you a red rubber nose and some hair dye.

  9. Jonathan – the source CNN – hates Trump – 100% of the people they have as experts are Trump haters – Honing is no different – everyone of his opinions have been anti Trump and 100% wrong. CNN is not in the news business they are in 100% Dem. Party PR firm and 100% anti Trump network – just look at their ratings which I fail to understand why ATT still has not changed the MGMT? CNN viewer ship is dropping like a rock

  10. Ellie Honig? I’m guessing Elie loves him some hearsay, witness impressions therefrom and element-free “crimes” to convict people. Do these people remember anything from law school? Or are they the classic pettifoggers leaching on the ever-decreasing respect for lawyers among the public. I’d rather have a legal opinion from Ellie Mae than this guy.

  11. Vindman testified “ It is improper for the president of the United States to demand a foreign government investigate a U.S. citizen and political opponent”.

    This would seem to meet the burden of the “ truthful information relating to the commission or possible commission of any Federal offense” prong in that Vindman saw “information relating to the possible commission of any Federal offense”. He didn’t know if it was a crime or not he stated, only that it was evidence of wrong doing.

    Whether the house saw fit to charge trump with the crime of bribery, extortion or any other federal offense, Vindman clearly knew he had information related to the possible commission of a federal offense and therefore he and his twin (who did nothing) should be protected from retaliation as Deputy Secretary of Defense David Norquist claimed “Let me assure you, the Department will not tolerate any act of retaliation or reprisal”. Retaliation…
    https://youtu.be/MSPadXaUPMQ

  12. Vindmann along with 70 others were let go from the NSC. Vindmann has been returned to duty at the Petagon,

  13. Lizzy Warden wants to impeach Barr. These dolts just don’t get it. After the last impeachment mess, Trumps poles trended higher. Trump may take actions we disagree with, but is he breaking the law. I’ve seen past presidents do things I didn’t agree with, but they acted within legal parameters.
    .

  14. “We can clearly have good-faith disagreements on some of these points.”

    Agreed. It’s possible. But, in this particular administration, I’d take ‘clearly’ out of the quote. Trump instinctively veers toward bad faith as a primary strategy. It’s defined his actions since his days back in NY. And if anyone looks at even just the last week since he was acquitted of being impeached it’s clear just how petty the man is.

    Thing about Trump that is sort of his evil genius is that he learned enough along the way to say things out loud and then do them, taking the sting out of his highly questionable (whether strictly illegal or not) behavior. He learned it well enough to slither into the White House and has looked for rocks to slide under ever since he arrived there.

    No doubt the behavior of Trump in office, whether one term or two, will be catalogued by someone and labeled “Negotiating in Bad Faith: The Donald Trump Story”. So it seems, we all just either sit back and marvel at the man because he actually acts out our own dirty goat impulses in public or wait for him to slip beyond bad faith into sheer illegality and get caught for it…

    I’ll say this, Trump is making a dent in the judiciary this week. The old boy just might shoot the hill on this one. The center is not holding.

  15. Eyes on the prize! The one thing that local police chiefs, attorneys general, prosecutors, FBI agents, intel agents, joint chiefs and presidents ALL have in common is that they pledge supreme loyalty to an indirect loyalty oath. They make a promise to God to follow the U.S. Constitution and Bill of Rights as a condition of holding authority. It’s unconstitutional to place any other loyalty above the U.S. Constitution governing their job authority. Basically American officials promise to not justify the ends using unconstitutional means. No American can hold authority at the local, state or federal levels without agreeing to this loyalty [Article VI of the U.S. Constitution]. Voters (and judges) need to hold both parties to their promise.

  16. there is no such thing as the ‘rule of law ‘ any longer in this nation …it’s what ever one chooses to think it is … mankind’s flaws continue to expose us as not ‘worthy of governing ‘ ourselves … our CREATOR” tried to warn “HIS” creation … we chose not to listen … and look at the “MESS” we have made of everything we touch …….

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