An open display of obstruction and witness tampering

Barry Berke and Norman Eisen spell out how Trump’s tweets yesterday are evidence of his obstructing justice.

Monday, Trump edged closer to an open display of obstruction and witness tampering: He urged potential witnesses against him to refuse to cooperate with law enforcement — and implied threats against those who do.

Trump began by publicly attacking Michael Cohen, his former attorney and fixer, who pleaded guilty last week to lying to Congress about a Trump real estate project in Moscow and who has been cooperating with special counsel Robert S. Mueller III.

Trump suggested in a series of tweets not only that Cohen is lying but also that he should receive no benefit for cooperating, as Cohen’s lawyers have requested: “‘Michael Cohen asks judge for no Prison Time.’ You mean he can do all of the TERRIBLE, unrelated to Trump, things having to do with fraud, big loans, Taxis, etc., and not serve a long prison term? … He lied for this outcome and should, in my opinion, serve a full and complete sentence.”

I keep wondering if Trump actually understands that these tweets are or look like or flirt with obstruction of justice, and that that’s a crime, and that slapping them out there the way he does could potentially (though by no means certainly) get him in legal trouble. Is it that he understands that but thinks Republicans will save him? Or that he does but thinks his adoring fans will save him? Or that he does but he thinks They Wouldn’t Dare? Or does he just not grasp it at all? I don’t know, and it’s a puzzle.

Obstruction and witness-tampering law prohibits retaliation by the subject of a criminal probe against those testifying against him. Trump is, of course, an identified subject of the relevant investigations. But as president, he is also ultimately responsible for the federal prosecution power — and he is openly attacking Cohen, who soon faces sentencing, with federal prosecutors who ultimately report to Trump given an important say.

And it doesn’t get much more sleazy than that. He’s a subject and he has the power to meddle. Brilliant.

Then Trump heaped praise on Roger Stone for refusing to squeal like Cohen.

So where he threatened a stick against Cohen, Trump offered a carrot to Stone, signaling where their allegiances should lie. This proof of potential witness tampering and obstruction of justice is made even stronger by the fact that the messaging is from the person who holds the most powerful get-out-of-jail-free card: a presidential pardon.

Under normal circumstances, someone engaging in this type of behavior could be criminally charged. But in this case, the Justice Department’s Office of Legal Counsel has previously indicated that a sitting president should not be indicted. We disagree, and the issue is unresolved: Neither the Supreme Court nor any lower court has yet addressed it. Still, Mueller is unlikely to defy the department’s guidance.

Maybe that’s the answer to the puzzle – maybe Trump thinks the Office of Legal Counsel has given him blanket permission to commit crimes in full view.

That makes it all the more important that Congress examine whether the pattern of evidence constitutes an abuse of power or criminal obstruction of justice. That has proved a forlorn hope with Congress in the hands of Trump’s party. But with the House about to change hands, there is reason to hope that will occur once Mueller issues his long-awaited report on obstruction.

The president’s frenzied tweets suggest he recognizes that threat. Perhaps that’s why a later tweet in Monday’s tirade was directed at the special counsel: “Bob Mueller (who is a much different man than people think) and his out of control band of Angry Democrats, don’t want the truth, they only want lies. The truth is very bad for their mission!” Quite the opposite is the case: Congress, and all of America, await Mueller’s report on Trump’s deeply troubling behavior.

Personally, I would like to see Trump dragged away in handcuffs kicking and screaming.

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