clueless Individual 1 toys with “obstruction” … again

Gage Skidmore / Flickr Donald Trump...
Gage Skidmore / Flickr

The ever-vindictive Trump tries to get back at Michael Cohen because it’s not only throwing the book but also trying to send a message to others who would help Mueller.  Because that’s all so presidential, witless tampering by Scott Free.

I’m curious how the law around obstruction treats cases like this, where there’s a series of actions that probably don’t individually rise to the level of obstruction, but taken in the aggregate constitute a pretty clear effort to hamper the investigation.
In this case, Trump shooting his mouth off taints the process either way. Suppose Pauley was already disposed to impose a harsh sentence: Now that outcome will inevitably cause at least some to question whether Trump’s weighing in had any influence.
And if he’s relatively lenient, I guarantee we’ll see a couple headlines to the effect of “Judge defies Trump!” Either way an independent judicial determination ends up reframed as a reaction to pressure from the White House.

Darn that rule of law, and that guy Scott Free.

Trump demands stiff prison sentence for his ex-lawyer Michael Cohen, accuses Mueller of seeking ‘lies’ from witnesses

  • President Donald Trump on Monday called for his ex-personal lawyer Michael Cohen to receive a stiff prison sentence for his admitted crimes.
  • Trump accused Cohen of making up “stories to get a GREAT & ALREADY reduced deal for himself.”

  • Trump also accused special counsel Robert Mueller of seeking “lies” from witnesses about Trump, and praised his longtime associate Roger Stone as having the “guts” to withstand pressure from Mueller’s prosecutors to “make up stories” about the president.…

Today the President of the United States tweeted approvingly
about Roger Stone refusing to testify against him. Lots of people thought this was norm-violating and looked horrible and they were right. But is it actually witness tampering?
/2 The primary federal witness-tampering statute is 18 U.S.C. 1512. There’s no threat here, so the relevant part is 1512(b), which prohibits “corruptly persuading” a witness with intent to influence or prevent their testimony or get them to withhold it.

/4 But wait! What does “corruptly persuade” mean?
It means “with an improper motive.”
You’re welcome! That will be $1,500.

/5 No, seriously, what “corruptly persuade” means is one of those oft-disputed touchy-feely areas of law. In fact, the circuits — the various United States Courts of Appeal — disagree on its meaning.

/6 Specifically, the circuits are split over whether it’s “corrupt persuasion” to try to persuade someone to do something they have the right to do, like take the Fifth.

/7 The President isn’t tampering if he’s genuinely just saying “hooray for Roger Stone telling the truth.” The statute has a specific affirmative defense in 1512(e) if the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.
/8 (I mean, if you merely negate an element of the offense, that’s not really an affirmative defense, is it, and this serves to make the requisite mental state less clear, but who am I to tell the drafting geniuses in Congress how to write a statute?)
/9 So. Though I certainly understand why anyone would interpret the President’s tweet as encouraging Roger Stone to continue being Roger Stone, and why we may think he knows Stone is lying, it would be an extraordinarily difficult tampering cause to prove……
/10 …because you’d have to prove that he intended to influence Stone not to testify against him truthfully, knowing that Stone had harmful things to say he hadn’t said yet, and not that he was merely thanking him for telling the truth. Damn tough case.

/11 Let us not bother with 18 U.S.C. 1503, the generic “influencing” statute, which has language making it a crime to “corruptly . . . obstruct or impede” justice, because that collapses back into the same “corruptly” definition analysis.

/12 Though it’s very hard to prove this is witness-tampering, it’s absolutely norm-violating, and if a CEO or mob boss or other authority figure did it, the feds would absolutely crawl up their ass and look for a way to charge them for it.
/13 And, of course, Congress (or at least a majority of the new House) might view it as obstruction or tampering, and could include it in an article of impeachment. They might not me wrong. /end

Thank you to all who already support our work since we could not exist without your generosity. If you have not already, please consider supporting us on Patreon to ensure we can continue bringing you the best of independent journalism.

Leave a Comment

2 Comments on "clueless Individual 1 toys with “obstruction” … again"

newest oldest most voted
Notify of
Lone Wolf
Lone Wolf

Donald Trump (who is pretty much the lying scumbag we all thought he was) and his out of control gang, don’t want the truth, they only want lies. The truth is very bad for their mission!

Markm Mitchell
Markm Mitchell

Amazing to watch Trump et al go down.