Bending Toward Justice: Donald Trump’s exposure for witness tampering in the Russia investigation

Photo: (Photo by Drew Angerer/Getty Images)

The New York Times reported Wednesday night that Trump asked two witnesses in the Russia investigation about their interviews by Special Counsel Robert Mueller’s investigators, and asked one witness to change his story.

Some day, President Trump’s conduct before and during the Russia investigation will be taught in law schools in a class called Do’s and Dont’s in Federal Criminal Investigations (Mostly Dont’s).

Just after he was inaugurated, Trump reportedly pressured then-FBI Director James Comey to go easy on Trump’s then-National Security Advisor Michael Flynn. Flynn resigned and was later charged with lying to the FBI.

Trump reportedly fired Comey after Comey refused to declare his loyalty to Trump. The next day, Trump reportedly told Russian officials in the oval office that Comey was “a nut job” and firing him “relieved pressure” on Trump. Trump then told Lester Holt of NBC News that he was motivated by the Russia investigation when he fired Comey.

Trump reportedly orchestrated Donald Trump, Jr.’s initial response to a New York Times story about the June 2016 meeting at Trump Tower where Trump, Jr., Jared Kushner, and Paul Manafort met with Russian nationals and discussed dirt on Hillary Clinton. The President is said to have helped draft a response that claimed the Trump Tower meeting was about Russian adoptions, and not Hillary Clinton.

White House Counsel Donald McGahn II reportedly told investigators with Robert Mueller’s office that Trump ordered him to fire the special counsel last summer. Trump backed down only after McGahn threatened to resign.

On Wednesday night, New York Times published a report alleging that Trump pressured McGahn to issue a statement denying that Trump ordered him to fire Mueller. In a meeting in the Oval Office attended by Trump, McGahn and White House Chief of Staff John Kelly, McGahn told Trump he would not issue such a statement and reminded the president of his order from last summer to fire Mueller.

The details boggle the mind:

Mr. Trump’s interactions with Mr. McGahn unfolded in the days after the Jan. 25 Times article, which said that Mr. McGahn threatened to quit last June after the president asked him to fire the special counsel. After the article was published, the White House staff secretary, Rob Porter, told Mr. McGahn that the president wanted him to release a statement saying that the story was not true, the people said.

Mr. Porter, who resigned last month amid a domestic abuse scandal, told Mr. McGahn the president had suggested he might “get rid of” Mr. McGahn if he chose not to challenge the article, the people briefed on the conversation said.

Mr. McGahn did not publicly deny the article, and the president later confronted him in the Oval Office in front of the White House chief of staff, John F. Kelly, according to the people.

The president said he had never ordered Mr. McGahn to fire the special counsel. Mr. McGahn replied that the president was wrong and that he had in fact asked Mr. McGahn in June to call the deputy attorney general, Rod J. Rosenstein, to tell him that the special counsel had a series of conflicts that disqualified him for overseeing the investigation and that he had to be dismissed. The president told Mr. McGahn that he did not remember the discussion that way.

Standing alone, is this story enough to support a charge that Trump engaged in witness tampering? Probably not. Under the federal criminal code, it is a crime to knowingly use “intimidation, threatens, or corruptly persuade another person . . . with the intent to influence, delay, or prevent the testimony of any person in an official proceeding.”

For one, McGahn has yet to give formal testimony before the grand jury overseeing the Russia investigation. So far, he’s only been interviewed by Mueller’s office. Trump wanted McGahn to issue a public statement denying the New York Times story that Trump ordered McGahn to fire Mueller. If McGahn had issued a public statement contradicting the Times report, Mueller’s office could have used that statement to pursue charges against McGahn for lying to the FBI, or used to undermine any testimony McGahn later gave under oath to the grand jury.

Unless more details emerge, this episode seems to fall short of witness tampering, as that crime is defined under federal law.

But that doesn’t mean Trump acted appropriately. The number one rule for people who are embroiled in a complex federal criminal investigation is: don’t talk to other witnesses about the investigation. Prosecutors are always on the lookout for evidence that witnesses coordinated their story, or tried to. Even if such conduct doesn’t rise to the level of witness tampering, it can be used to undermine the credibility of witnesses before the grand jury or in a trial.

Lawyers representing witnesses in a complex criminal investigation do have ways of finding out what’s going on, and if their clients follow their advice, it keeps the clients out of trouble with prosecutors. Lawyers enter into joint-defense agreements in which they agree to share certain information, strategies, and legal theories as an investigation proceeds, all while maintaining the attorney-client privilege and the confidentiality of the attorneys’ work product.

It works like this. Witness A and his lawyer are in a joint-defense agreement with witnesses B, C, and D and their lawyers. Witness A is interviewed by the FBI. He then tells his lawyer everything that happened in the interview. Witness A’s lawyer writes a memo in which she records her mental impressions of what witness A told her. The memo is not a verbatim recitation of witness A’s testimony or of witness A’s conversation with his lawyer.

Witness A’s lawyer then either shares her memo with the lawyers for B, C, and D, or orally communicates to them the substance of her memo. Lawyers can share their mental impressions, strategies and theories as part of a common defense, without waiving privileges or confidentiality.The lawyers then share what they learned with B, C, and D.

When B, C, and D are interviewed with the FBI, they can truthfully answer that they have had no conversations with each other, or with A, about the investigation. And they can invoke the attorney-client privilege and refuse to answer questions about what they learned from their lawyer what other witnesses have told the FBI.

This may sound fishy but it’s perfectly legal and precisely how criminal defense lawyers go about representing their clients every day of the week. The problem for Trump’s lawyers is that he doesn’t abide by rule number one, and otherwise has shown utter disdain for following procedures that he feels shackle his ability to “hit back.”

Which brings us back to Wednesday’s New York Times story.

The latest McGahn episode adds to the layers of evidence the Special Counsel is collecting as he investigates whether Trump obstructed justice by interfering, or attempting to interfere with, the Russia investigation. On an obstruction of justice charge, the key is defendant’s state of mind — that is, whether he acted with a corrupt intent to “influence, obstruct, or impede” the “due administration of justice.”

Criminal law experts disagree on whether the information in the public record is sufficient to justify an obstruction of justice charge against Trump (putting aside the constitutional question of whether a sitting president can be indicted).  Every effort by Trump to bully current and former White House employees, former campaign aides, Justice Department officials, the FBI, and the Special Counsel’s office adds to weight to the notion that Trump is acting with corrupt intent.