President Donald Trump reportedly spoke with key witnesses about what they told special counsel Robert Mueller in regards to the ongoing Russia investigation. That was a bad idea.
The report, published by the New York Times on Wednesday, alleges Trump contacted at least two individuals: (1) White House counsel Donald F. McGahn; and (2) former White House chief of staff Reince Priebus.
Trump’s discussions with the two men allegedly concerned certain aspects of their testimony given to Mueller’s investigators after the interviews concluded.
According to the Times report, the incident between Trump and McGahn occurred in late January and concerned Trump’s displeasure with McGahn’s refusal to deny a report that Trump had instructed McGahn to fire Mueller. Trump and McGahn apparently hashed it out, with each man claiming they remembered the incident differently. Ultimately, they both left it alone. McGahn is still employed as White House counsel.
The Priebus encounter allegedly occurred last December. During that West Wing meeting, Trump allegedly asked Priebus how his October interview went with Mueller’s team went. Per the Times, “Mr. Priebus replied that the investigators were courteous and professional. He shared no specifics and did not say what he had told investigators, and the conversation moved on after a few minutes, those briefed on it said.”
Citing unidentified “legal experts,” the original report dismissed the idea that Trump’s conversations with McGahn and Priebus rose “to the level of witness tampering.” This analysis takes the opposite perspective.
President Trump could already be subject to a raft of potential witness tampering charges as previously noted in a January 27 analysis for Law&Crime. In that report, we analyzed how he could face these charges for reportedly pushing his aides to discredit officials with the Federal Bureau of Investigation (“FBI”). These additional conversations only make such charges more likely. Taking the New York Times‘ reporting as true (admittedly, an always a dicey proposition), Trump most probably increased his own legal jeopardy by approaching Mueller’s witnesses after they testified.
The law on point here is mostly contained at 18 USC § 1512(b). Section 1512(b) is essentially the heart of the federal witness tampering statute–it’s also the most famous section and one of the more 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…
shall be fined under this title or imprisoned not more than 20 years, or both.
Mueller’s most plausible avenue to explore with Section 1512(b) viz. the McGahn conversation would likely stem from the fact that Trump and McGahn have dueling accounts of what exactly Trump said in the first place about Mueller’s potential firing. Here, Mueller could plausibly try to make the prohibition against engaging “in misleading conduct toward another person” stick against Trump for possibly bullying McGahn with the presidential version of the event (wherein he claims he never asked McGahn to fire Mueller.)
Witness tampering charges based on the McGahn conversation might seem like a stretch but federal prosecutors are generally given wide latitude–and this latitude only increases in high-profile cases.
As an example, former independent counsel Ken Starr dealt with this area of law when investigating former President Bill Clinton. Recall, the 42nd president was ultimately impeached on obstruction of justice. Starr’s report cited to the Section 1512’s witness tampering provisions on at least four separate and distinct occasions to achieve the Clinton impeachment result on obstruction. Section 1512(b) was specifically highlighted by the report in a lengthy footnote.
Clinton’s actual crimes? Amongst other things, he tried to get Monica Lewinsky a job, said untrue things he didn’t remember saying to witness Betty Currie and lied to potential grand jury witnesses. How does that jibe with Trump and McGahn’s conversation? Well, Trump and McGahn disagree about the attempted Mueller firing and Trump was very vocal about this–to the point of requesting McGahn change his story in order to protect the White House. Could that alone rise to the level of improper influence brought to bear on a witness? Absolutely. Mueller has more than enough rope here if he wants to make the charge.
(The one thing that could possibly hold Mueller back here is the statute’s fairly stringent knowledge requirements in Section 1512(b). The Supreme Court has previously ruled on this section of the statute in Arthur Andersen LLP v. United States and found that a prosecutor has to show that a would-be tamperer actually intended to to use intimidation, threats, corrupt persuasion or misleading conduct in order to be found liable–and this has occasionally been a tough task for prosecutors.)
But Mueller also has a lot more statutory authority to work with if he chooses to focus on Trump’s conversations with his witnesses and pursue charges based on them. The federal witness tampering statute helpfully contains a catch-all section. Located at 18 USC § 1512(c), this section reads, in full:
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 isn’t quite as hamstrung by knowledge requirements. All he would need to show is that Trump’s conversations with McGahn and Priebus were undertaken “corruptly” and had some sort of obstructive impact or influence–or that there was an attempt to have such an impact or influence.
So, what does “corruptly” mean here? Luckily, there’s a nearby federal statute likely to provide the answer. 18 USC § 1515(b) 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.”
Acute observers will note two things: (1) that definition is broad and encompasses an awful lot of behavior that could likely apply to anyone under almost any circumstances if a prosecutor wants it to; and (2) the federal witness tampering statute is extremely self-referential to the point of tautological. That’s the point.
In other words, Sections 1512(c) and 1515(b), when taken together, mean Robert Mueller and his team only need to allege Trump’s discussions with McGahn and Priebus were broadly improper. (Section 1512(c) is also referenced–and used liberally–in Starr’s report on Clinton.) An indictment’s potential inclusion of Trump’s allegedly false statement to McGahn offers Mueller all the opportunity he needs to make this charge stick.
So, what’s the import of all this? Robert Mueller has quite a bit of room to run. If Mueller chooses to focus on Trump’s after-the-fact discussions with his witnesses, the president’s decision to chat up McGahn and Priebus might well be remembered as one of the most devastating own-goals ever made.
[image via SAUL LOEB/AFP/Getty Images]
