Add "Witness Tampering" To Trump's Long List Of Crimes?

(This caricature of the criminal living in our White House is by DonkeyHotey.)

It is said that Donald Trump and his aides in the White House are depressed and worried that the "witch hunt" is getting ever closer to Trump himself. They should be worried. There is a long list of crimes it looks like he has committed, and that list continues to grow.

It now looks like we can add wines tampering to that list of crimes -- thanks to his recent remarks about Paul Manafort. His statements praising Manafort for not "flipping", and inferring that a pardon may be coming, could easily be construed as trying to influence Manafort (who could be a witness against Trump in the future).

Here's just a small part of what Sarah Grant, Sabrina McCubbin, Yishai Schwartz, and Benjamin Wittes have written about this at the Lawfare website:

Donald Trump is swimming in dangerous waters. The day after his former campaign manager was convicted by a federal jury on eight felony counts, the president of the United States made a sequence of public statements praising Paul Manafort for refusing to cooperate with a lawful federal law enforcement investigation and for not “flipping” on the president—and, conspicuously, did not rule out a pardon. 

In a tweet on Wednesday morning, Trump announced:

And in an interview with “Fox & Friends” the same day, the president returned to the same theme: Cohen “makes a better deal when he uses me, like everybody else,” Trump said. “And one of the reasons I respect Paul Manafort so much is he went through that trial—you know they make up stories. People make up stories. This whole thing about flipping, they call it, I know all about flipping.” He added that such “flipping” was “not fair” and “almost ought to be outlawed.”

In the same interview, asked point-blank by “Fox & Friends” co-host Ainsley Earhardt whether he was “considering pardoning Paul Manafort,” Trump answered: “I have great respect for what he’s done, in terms of what he’s gone through. You know, he worked for Ronald Reagan for many years. … I would say what he did, the charges they threw against him, I’d say every consultant, every lobbyist in Washington probably does.” He then quickly changed the subject to Hillary Clinton, John Podesta and Peter Strzok.

Before making any more comments that a reasonable person in Paul Manafort’s shoes—or Robert Mueller’s shoes—might construe as urging Manafort not to “flip” or dangling the possibility of a pardon, there is a federal statute Trump might want to consult: 18 U.S. Code § 1512(b). That law makes it a federal crime “knowingly” to “corruptly persuade[] another person ... with intent to ... influence, delay, or prevent the testimony of any person in an official proceeding” or “cause or induce any person to withhold testimony . . . from an official proceeding.” It also makes it a crime to attempt to do so.

Like other obstructions of justice, the witness tampering statute requires proof beyond a reasonable doubt of specific corrupt intent on the part of the defendant. So don’t hold your breath for Mueller to leap to accuse the president of a violation. But Trump’s public signaling to Manafort is potentially important even if Mueller doesn’t treat it as a discrete obstruction of its own. The reason is twofold.

First, encouraging witness misbehavior, unlike firing officials or directing the conduct of federal law enforcement, is not plausibly within the president’s Article II functions. In urging a potential witness not to cooperate with a federal investigation that touches on his own conduct, the president is much more like a normal citizen before the justice system and much less distinctive, as even those most skeptical of the application of obstruction laws to the president concede. “The president can obstruct justice,” Josh Blackman makes clear, even in arguing that he “cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.” Tampering with a witness is not a lawful authority vested in Trump by Article II.

Second, to the extent that Mueller appears to be considering a pattern of obstructive behavior that includes internal executive-branch management abuses and public communications about law enforcement officials, the additional element of public communications directed at a particular potential witness to encourage that person’s non-cooperation seems significant. Not only does it show that the aggregate pattern does not consist wholly of Article II-authorized behavior, it also widens the scope and breadth of the corrupt behavior at issue. . . .

We have not found any reported cases in which a defendant was convicted for tampering with a witness by means of a TV interview. This is not a particular surprise; most individuals with an interest in manipulating a witness do not have the platform to reach their intended target by television appearance, and most who do have access to television networks have the good sense not to use a platform readily available to the general public as their vehicle for criminal conduct. That said, the statute does not seem to rule it out.

In short, while Mueller’s prosecutors would be foolish to focus on the president’s comments about Manafort as a stand-alone obstruction matter, they could form part of a larger obstructive pattern—a part that exists outside of the exercise of core Article II presidential functions. More generally, just as no reasonable prosecutor would be likely to treat these statements alone as criminal acts in and of themselves, it is just as clear that no reasonable defense lawyer would want a client already facing investigation for obstruction making comments like these.