Today, in advance of Sally Yates’ testimony before a Senate committee, President Trump tweeted:
Ask Sally Yates, under oath, if she knows how classified information got into the newspapers soon after she explained it to W.H. Counsel.
Yates was asked that question at the Senate hearing. She responded that she didn’t know. Former DNI James Clapper was asked the same question. He gave the same answer.
CNN host John King was outraged by Trump’s tweet. He opined:
Before I covered politics all the time, I used to cover the courts a lot. A lawyer would call that witness intimidation.
CNN’s Dana Bash agreed with King:
Completely. Look, I think that we have all been kind of desensitized, in some way, to his tweets and to his statements that are so out of the norm. This is beyond out of the norm. This is inappropriate.
For the president of the United States to be this aggressive with somebody who used to work for him, who is coming before the United States Congress in sworn testimony hours later, is beyond the pale. It just is.
I agree that Trump’s tweet was “out of the norm.” Was it inappropriate? I’m not sure. The question he wanted asked is legitimate, and it’s not clear to me that the president loses the right any citizen has to suggest that a legitimate question be posed, under oath, at a hearing.
Trump’s tweet seems no more inappropriate, and perhaps less so, than when President Obama called out the Koch Brothers for opposing his policy on solar energy, or when, during his State of the Union Address, he attacked a Supreme Court decision in the presence of Justices who were in the majority in that case.
These comments could be intimidating — more so than merely suggesting that a question be asked at a hearing.
If President Trump’s suggestion amounted to witness intimidation, it would be not just inappropriate but unlawful. Under federal law — 18 U.S.C. 1512 — it is a crime to engage in witness tampering and/or intimidation. That provision defines the offense in these terms:
(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
I’m not a criminal lawyer, but it’s difficult for me to see how Trump’s tweet falls within this definition. On its face, the tweet does not indicate that Trump is trying to influence Yates’ testimony or cause her to withhold testimony. He’s simply suggesting a line of inquiry.
To prosecute Trump, the theory would have to be that he intended to induce Yates not to appear before Congress, or to appear but to withhold or alter testimony about her warning to the Trump administration regarding Gen. Flynn (or some other matter), by persuading Senators to ask her about the leak of classified information to newspapers.
I don’t see how such a case could be made. If Yates had nothing to do with the leak, as she testified, she couldn’t possibly be intimidated by the prospect of the question Trump suggested. And even if she had something to do with the leak, it’s far-fetched to think that the prospect of the question would cause Yates to skip the hearing or to change her testimony about Flynn. There’s no indication that Trump thought it might have such an effect.
Trump didn’t say that Yates should be asked his question if she testifies a certain way about Flynn. He wanted the question asked regardless. Thus, he was not offering Yates an inducement.
There are two plausible reasons why Trump said the question should be asked. First, he wants to bring up the leak at every opportunity. Second, he may actually want to get to the bottom of the leak.
The notion that Trump said the question should be asked because he hoped to influence Yates’ testimony is speculative and implausible. A prosecutor could never prove that this was his intent.
So King’s comment strikes me as inane — just another example of CNN wildly lashing out at Trump. I invite readers who know the criminal law to correct me if I’m wrong.
UPDATE: Bill Otis, a career prosecutor, says the claim that Trump engaged in witness intimidation is “preposterous.” He writes:
Witness intimidation seeks to alter or, more frequently, suppress or eliminate testimony. Trump was encouraging MORE testimony, and on a highly relevant subject. I have a pretty good idea of what witness intimidation looks like, and Trump’s tweet was more like the opposite.