Did Trump illegally tamper with a witness?

A few minutes ago, Trump tweeted: “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!”

First, is he trying to appear as Nixonian as possible? Or is he so ignorant of all history that he has no idea how damaging this reference is politically? Either way, it is the panicked behavior of someone who lied about what was said, and is trying desperately to intimidate or create doubt.

Second, it’s also possible that he wants to deflect attention from his confession of obstruction of justice last night on NBC, which I lay out here.  That’s the clearest case of a felony, but I’m watching the media today miss that headline because I think they don’t see the significance of Trump’s admission legally.

Maybe at this stage, politics is more influential than law, but let’s talk about the law. Trump was explicitly addressing media leaks, but we all know that Comey is scheduled to be a witness next week in the Senate (and certainly again thereafter).  Hat-tip to Jennifer Taub, the statutes on witness intimidation are written broadly and enforced broadly.  Here is the relevant text of federal criminal statute 18 U.S. Code Section 1512, with relevant passages in bold:

(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;… 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 or a violation of conditions of probation supervised release, parole, or release pending judicial proceedings…
shall be fined under this title or imprisoned not more than 20 years, or both.
(d)Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from

(1) attending or testifying in an official proceeding;
(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense…; or
(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;
or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.
Comey isn’t going to be delayed or deterred, so (b), Trump’s intent, is more relevant than (d), his actual effect on Comey. I am reading cases today.  As I read more, I am worried that these statutes are overly broad, and that the threshold for intimidation needs to be high, so that we don’t criminalize political discourse.  I’ll keep reading…

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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