201705.13
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Did President Trump Commit a Federal Crime?

President Trump made headlines yet again for a tweet. Despite how common that sentence is nowadays, this particular tweet made headlines due to its criminal law implications. My good friend and colleague Nick Verderame (https://plattner-verderame.com/attorneys/nick-verderame/) asked me if the President committed a crime. What did President Trump say? See for yourself:

Yes, that’s President Trump implying there may be recordings of conversations he had with the Former FBI Director. You know, the one President Trump recently fired. The reasons behind said firing are not pertinent to whether a crime occurred, so I won’t discuss them.

To determine whether that tweet could lead to criminal charges we need to examine 18 U.S. Code § 1512. This section of the Federal Code deals with “Tampering with a witness, victim, or an informant.” There are a few different ways to violate this section, and I will only look at the ones that apply (President Trump hasn’t killed anyone, so it doesn’t make sense to discuss that subsection).

First, anyone who 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 influence, delay, or prevent the testimony of any person in an official proceeding has committed the crime. If convicted, President Trump could a receive a fine, be imprisoned for not more than 20 years, or both. It definitely seems like President Trump has run afoul of this section. At the very least, his tweet appears to be an attempt to prevent former Director Comey from testifying. I see two issues with that: 1) It’s going to be hard to prove that it was actually the President who sent that tweet. Yes, I know that sounds absurd given who he is, but it’s still on the Government to prove it. 2) The President has an affirmative defense. If he can prove by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that his sole intention was to encourage, induce, or cause the other person to testify truthfully then no crime occurred. This is probably his strongest argument. There is nothing illegal about sending out a tweet. Further, one can argue that his tweet was simply meant to encourage Director Comey to tell the truth, because if he lies, there are “tapes” to contradict him.

Second, causing or inducing a person to withhold testimony, or withhold a record, document, or other object, from an official proceeding is also a violation of the law. The same possible sentence as above applies. Does the President’s tweet meet the criteria? It would seem so at first glance, however, the crime itself is not complete. Former Director Comey, as of this writing, has not refused to testify before Congress. Most reports indicate he is not only willing to testify but will only do so in public.

Finally, whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from attending or testifying in an official proceeding or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both. This subsection carries a less onerous penalty, but it is still a crime. I think the Government runs into the same issues as above. Namely, can it prove it was actually the President who sent that tweet, and can the President show his only intention was to encourage Director Comey to tell the truth.

Given the issues, this is not a good case for the Government to bring. This is also an example of how smart individuals can be quick to condemn something as criminal without understanding the nuance of the law. This is why it is always important to discuss legal issues with a qualified attorney. If you are accused of or charged with intimidating or tampering with a witness, you should consult an attorney immediately. The Nava Law Firm offers free consultations, and we are available to take your call 24/7.

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