President Donald Trump reportedly pushed his aides and apparatchiks to discredit officials with the Federal Bureau of Investigation (“FBI”) who were likely to testify against him as part of the Russia probe currently being conducted by special counsel Robert Mueller.
The report, published by Foreign Policy on Friday, alleges that Trump targeted three FBI officials in particular: (1) Deputy Director of the FBI Andrew McCabe; (2) chief of staff and senior counselor to the Director of the FBI Jim Rybicki; and (3) and former FBI general counsel James A. Baker.
Trump’s so-called “campaign” against the three men allegedly began after the president was made aware of the threat their testimony potentially posed to his presidency. Alerting Trump to the alleged threat was the president’s defense attorney John Dowd. According to Friday’s report, Trump told his team to “fight back harder,” after receiving Dowd’s warning.
If true, the allegations are quite serious. (Dowd himself rubbished the report as “flat-out wrong” and told Foreign Policy, “You don’t know me. You don’t how I lawyer, and you don’t know what I communicated to the president and what I did not.”) This analysis takes Foreign Policy‘s reporting as true for the sake of argument, however, and explores possible charges of witness tampering.
The law on point here is mostly contained at 18 USC § 1512(b). Section 1512(b) is traditionally one of the most frequently used sections of the federal witness tampering statute–also perhaps its most famous section as well as one of the most difficult to satisfy. Section 1512(b) reads, in relevant part:
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;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
(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…
shall be fined under this title or imprisoned not more than 20 years, or both.
The section of the statute referenced above offers quite a bit of room for Mueller’s team to stretch out their legs. That is, §1512(b) provides a non-exhaustive, though wide-ranging, description of activities which sometimes legally constitute federal witness tampering.
We can more or less immediately discount certain lines in the section above. The references to altering documents or causing the absence from a legal proceeding probably are not plausible avenues for Mueller to explore.
Mueller’s focus here would likely be on whether the alleged “campaign” against McCabe, Rybicki and Baker rose to the level of a knowing attempt to intimidate, threaten or corruptly persuade the men not to testify in front of Mueller or whether the campaign against them was intended to somehow delay or alter their testimony in a way that would not have occurred but for the campaign itself.
This inquiry is extremely fact-specific, however, and the Foreign Policy report only vaguely references the idea of a generalized “campaign” against the three men. Without more information to go on, it’s exceedingly difficult–and somewhat reckless–to perform a fact-specific inquiry on merely generalized allegations alone.
Furthermore, the statute contains a knowledge requirement (“Whoever knowingly uses…”) which mandates that a prosecutor show a defendant’s intent to use intimidation, threats or corrupt persuasion to achieve their unlawful aim. Proving a defendant’s state of mind is an even dicier proposition than showing their allegedly unlawful conduct in the first place. This is, essentially, the import of Supreme Court jurisprudence on the subsection (see: Arthur Andersen LLP v. United States.)
Such proof would likely be hard to come by in a case like this–though it can be imputed by the totality of the facts and circumstances when viewed in context. But, again, the full facts and circumstances available here don’t truly offer much context due to their auspicious absence from the Foreign Policy report.
Mueller does have a bit more to work with, though. The federal witness tampering statute contains a sort of catch-all section. Located at 18 USC § 1512(c), this section reads, in its entirety:
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
Here, Mueller is not as constrained with knowledge requirements as in the first section–1512(b)–discussed above. All that would be necessary to pursue a 1512(c) line inquiry here is for Mueller to show that Trump’s alleged campaign against McCabe, Rybicki and Baker was done “corruptly.” That is, that the alleged “campaign” was an attempt with an improper purpose behind it.
The definition of “corruptly” likely to be used here is contained at 18 USC § 1515(b) and reads, in relevant part:
[T]he term “corruptly” means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information
Now, observers might be a bit confused. The definitions and legal crimes listed here ultimately become self-referential and somewhat tautological. That’s true. That’s the point. It’s a feature, not a bug of federal law. The above-referenced definition is also fairly broad and vague and could seemingly capture quite a bit of activity. That’s also by design.
Again, a weighty analysis of Trump’s actions would be preferable here–the actual meat of the so-called “campaign” against McCabe, Rybicki and Baker, with examples, would provide a fact-intensive way to estimate Trump’s potential liability. But the mere presence of a “campaign” (even absent examples of what that campaign consisted of) against potential witnesses is ripe for an investigation into witness tampering.
And, because of the way federal law is mostly a closed-circuit of winks-and-nods constructed to empower prosecutors, there’s not much stopping Mueller from running rampant with such charges if he so desires. The bottom line: if there was indeed a campaign against the three men, Trump and his team are facing severe legal jeopardy.
[image via Mark Reinstein/Shutterstock.]
Follow Colin Kalmbacher on Twitter: @colinkalmbacher
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