President Donald Trump allegedly attempted to have a loyalist installed to take over the investigation into several hush money payments made to women during the 2016 presidential campaign.
According to The New York Times, President Trump made this bid for power and loyalty via newly-minted Acting Attorney General Matthew Whitaker in November of last year–right around the same time that federal prosecutors in the Southern District of New York (SDNY) were ratcheting up their pressure on Trump associates–like Michael Cohen and AMI–who facilitated the hush money scheme.
The request was allegedly made during a phone call. During that phone call, Trump reportedly had a simple question for Whitaker.
Per the Times report:
[Trump] asked whether Geoffrey S. Berman, the United States attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation, according to several American officials with direct knowledge of the call.
Whitaker allegedly told the 45th president that, no, Berman could not take the reins of the ongoing SDNY investigation because he had already recused himself from that exact investigation. News of this alleged interaction was immediately met with a denial by Trump.
Meanwhile, the legal commentariat turned to the idea of obstruction.
The law on point here is largely contained at 18 U.S.C. §1512(b). As we’re inclined to repeatedly note here at Law&Crime, Section 1512(b) is one of the most frequently used sections of the federal witness tampering statute–but it’s also one of the hardest federal crimes to prove. This section reads, in relevant part [italics added]:
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…
shall be fined under this title or imprisoned not more than 20 years, or both.
The idea here would be that Trump’s phoned-in request to Whitaker was an attempt to obstruct the SDNY’s investigation into his former fixer and other associated hangers-on involved in keeping the hush money scheme hush-hush. Since Whitaker did not act on the president’s request, the alleged effort to derail the Cohen investigation–and its associated legal progeny–didn’t go anywhere.
As the statute notes, however, no actual obstruction necessarily has to occur–a keen prosecutor just needs to show evidence of an attempt to obstruct.
Law&Crime reached out to several legal experts for their thoughts on whether Trump’s above-described conduct–if it actually occurred–would rise to the level of obstruction of justice.
Julie Rendelman is a former prosecutor and currently a defense attorney working in New York City. She also presently serves as an analyst on the Law&Crime Network. Rendelman took a long–and theoretical–view when assessing the situation.
If for argument’s sake we accept that Trump made the call to Whitaker and asked him to put Berman in charge of the investigation, the question is whether he had “corrupt intent” in making that request. When analyzing what his intent was, it is impossible to view it in a vacuum. Meaning, you need to review Trump’s words and actions throughout the entirety of the investigations against him in giving context to what his intent is. If that analysis is done, one might be hard pressed to believe there is an innocent mindset on the part of the President in what appears to be an attempt to derail the investigations.
National security lawyer Bradley P. Moss cautiously assessed the situation, but said it might very well factor into an impeachment inquiry:
[A]ny discussion of obstruction in the strict legal context will inevitably run smack into the constitutional claim that a president can do anything he wants to reorganize or alter the course of a law enforcement investigation. The one exception to that rule, of course, would be that the president cannot violate a separate legal prohibition in the course of that action, such as suborning perjury. Inevitably, this only becomes an issue in the political context of impeachment. In that situation, what is described in the New York Times article – if accurate and corroborated with some degree of comprehensiveness – would absolutely qualify as additional circumstantial evidence of corrupt intent.
Former federal prosecutor Elie Honig, now a CNN legal analyst, also spoke with Law&Crime.
“If, in fact, the president called Whitaker and said ‘I want you to see if you can re-install Berman and put my guy in charge of this investigation’–which is growing every minute and which is threatening to him–then I don’t see an innocent explanation,” Honig said during a phone call. “Why do you want Berman in charge? [Trump] wants him there to protect himself.”
The replacement request, Honig said, was almost certainly consciousness of the 45th president’s guilt.
“The common sense inference, and this is something we argue in trials, is that if somebody is trying to obstruct it’s not just for fun–it’s because they believe they’ll be implicated in the investigation,” Honig said. “They’re afraid of what that investigation is going to find.”
Honig went on note that, essentially, the proof was in the pudding served by the SDNY later that same month.
On November 29, Cohen pleaded guilty to several crimes in front of an SDNY judge. Documents released from the court later showed “the SDNY saying on the record that Trump had directly ordered [Cohen] to make the hush money payments.”
Trump’s alleged attempt to re-install Berman also evidenced a corrupt intent. Again Honig:
I can’t think of a non-corrupt intent of trying to get his own guy back in charge of this investigation. The only non-corrupt intent would be that Trump thought Berman was a more capable lawyer–but that’s not what was happening here. I can easily think of a corrupt intent–to limit what the SDNY did and to ensure that Trump didn’t take any shrapnel.
Finally, Honig added, with everything else known about Trump’s approach to law and his legal-minded subordinates, the attempt to get Berman on top of the Cohen investigation was simply true to form.
“In a way it’s not surprising because it’s so consistent with everything else he’s done. This is basically identical to the way that Trump raged against” former attorney general Jeff Sessions for recusing himself from overseeing Robert Mueller‘s Russia investigation, the former prosecutor noted.
As for the attorney general who told him ‘no’? He could be in trouble, too.
Whitaker recently told the House Judiciary Committee that the White House never asked him for any “commitments concerning the special counsel’s investigation or any other investigation.” The Times report would appear to contradict that claim, and although the Committee did not drill down as much as they could have on Whitaker-Trump-SDNY, they might have another opportunity (or excuse) to do so.
Correct. Completely let him wiggle and didn’t even close to pin him down. Hey bring him back for round two.
— Elie Honig (@eliehonig) February 19, 2019
Whitaker did release a statement through DOJ spokesperson Kerri Kupec on Tuesday to say that he stands by the testimony he gave under oath.
“Under oath to the House Judiciary Committee, then Acting Attorney General Whitaker stated that ‘at no time has the White House asked for nor have I provided any promises or commitments concerning the special counsel’s investigation or any other investigation,” the statement said. “Mr. Whitaker stands by his testimony.”
[image via via Olivier Douliery-Pool/Getty Images]
