I used to think his Russiagate rants on Twitter were mainly strategic, aimed at discrediting the probe so that any adverse findings could be dismissed out of hand by his base. But there are many ways he could do that without flirting with witness tampering.
Now I think he’s just ranting to blow off steam, to his own detriment.
Between today’s Twitter’s tantrum and last week’s news that Manafort has been operating as a sort of double agent for Trump against Mueller, it seems likelier every day that Mueller’s going to end up throwing an obstruction claim at POTUS. That won’t convince 20 Senate Republicans to remove him from office (unless there’s also evidence of collusion, and even then I’m skeptical) but it’ll probably be enough to get the House to impeach him, however much Pelosi may wish to avoid that. If Mueller accuses Trump of a crime the Democratic base will demand action.
Step one: Tell reporters that he hasn’t ruled out a pardon for Manafort. Step two: Emphasize that Cohen, who’s cooperating with prosecutors, deserves no leniency. Step three: Celebrate Roger Stone for not cooperating with prosecutors. He doesn’t use the P-word in any of his tweets here but the Manafort comment from a few days ago makes clear what Stone’s reward might be for refusing to testify.
All of which inspired “Mr. Kellyanne Conway” to counter with this:
File under “18 U.S.C. §§ 1503, 1512” https://t.co/e4ZGVn1kJi
— George Conway (@gtconway3d) December 3, 2018
His friend, Obama veteran Neal Katyal, concurred:
George is right. This is genuinely looking like witness tampering. DOJ (at least with a nonfake AG) prosecutes cases like these all the time. The fact it's done out in the open is no defense. Trump is genuinely melting down, and no good lawyer can represent him under these circs https://t.co/zqFUoQvWTf
— Neal Katyal (@neal_katyal) December 3, 2018
Section 1503 is the federal statute covering jury tampering. The key bit:
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).
That last section is a bro-o-o-ad catch-all for corrupt behavior aimed at influencing a judicial proceeding but the statute seems primarily concerned with illicit attempts to reach jurors, whether via bribes (“influence”) or threats. Today’s tweets pose no greater risk of that than any of the other Russiagate rants Trump has published over the last 18 months. If you’re worried about pro-MAGA jurors being influenced by his opinion, we crossed that bridge about 500 tweets ago. And if you’re worried about him influencing Stone’s behavior before the grand jury, there’s another statute that speaks more directly to that.
That would be section 1512, the other one mentioned by Conway: “Tampering with a witness, victim, or an informant.” Quote:
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(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;…
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation
Do that and you’re facing a sentence of up to 20 years. Stone insists that he and Trump have never discussed a pardon, although he admits that he’s pushed hard for a “blanket pardon” for another key Russiagate player, Julian Assange, who was apparently indicted for unrelated crimes at some point in the past. And Trump’s public communications, as noted above, make clear enough that he’s willing to entertain pardons for cronies with “guts,” i.e. who refuse to cooperate with his own DOJ. The statute doesn’t require a direct conversation about it between the witness and the tamperer. In fact, the statute doesn’t even require that the tampering be successful. Merely the attempt to is enough for a crime.
All of which makes last week’s news about Manafort so interesting. If you want to pretend that Trump isn’t very publicly dangling a pardon at Stone here in exchange for his silence, okay. But the secret exchanges between Manafort’s lawyers and Trump’s lawyers about what was happening between Manafort and Mueller might not have been as veiled. And Mueller might be able to compel the lawyers to testify about those exchanges since they’re no longer protected by attorney-client privilege. That is, there may be bona fide clandestine witness tampering in the case of Manafort, not the bizarre Twitter simulacrum we’re seeing with Stone.
Anyway, the next time Democrats control the government I suspect we’ll see some legislative efforts to clarify that certain federal criminal statutes do apply to presidential behavior, starting with using the pardon power to induce obstruction of justice. Unless the next Democratic president is a celebrity clown, that is, in which case those bills probably will end up being vetoed out of self-interest.
Update: Julian Sanchez counters with a different reading of section 1503. Trump isn’t tampering with a juror, he notes, he’s tampering — in theory — with the judge who’ll be sentencing Cohen.
Not, to be clear, that I think Judge Pauley is likely to make a different decision in hopes of winning Trump’s favor. But there are good reasons presidents traditionally don’t personally weigh in on specific judicial proceedings this bluntly.
— Julian Sanchez (@normative) December 3, 2018
And if he’s relatively lenient, I guarantee we’ll see a couple headlines to the effect of “Judge defies Trump!” Either way an independent judicial determination ends up reframed as a reaction to pressure from the White House.
— Julian Sanchez (@normative) December 3, 2018
“Demanding” is too strong a word to describe Trump’s tweet about sentencing Cohen, but the point is taken about the president having some power over federal judges in terms of deciding whether to promote them or not.