Late yesterday the New York Times reported that Donald Trump had contacted two witnesses in the Mueller probe. According to the Times, “The special counsel in the Russia investigation has learned of two conversations in recent months in which President Trump asked key witnesses about matters they discussed with investigators, according to three people familiar with the encounters.”
The witnesses are White House Counsel Donald McGahn and former Chief of Staff Reince Priebus.
As was reported last night in PoliticusUSA these actions almost certainly will add to Special Counsel Mueller’s case against Trump for obstruction of justice.
But what the Times did not report is that these actions may lead to entirely NEW charges by Mueller against Trump, for the crime called “witness tampering.”
According to knowledgeable attorneys, including former federal prosecutors, when the subject of an investigation is known to have talked to witnesses the prosecutors will also be looking for evidence that the subject has tried to intimidate witnesses or get them to change their testimony. Even if such efforts are not successful, the mere ATTEMPT to influence witnesses in federal criminal proceedings can constitute the crime of “witness tampering.” Tampering with witnesses, if proven, would be a crime even if the underlying investigation produces no charges against that person.
Given President Trump’s history of trying to bully, influence and coerce high ranking officials such as the Attorney General and the Director of the FBI, it is not unreasonable to conclude that the prosecutor will be looking at whether or not he tampered with these two witnesses.
President Trump asked FBI Director James B. Comey for his loyalty, and he has publicly criticized Attorney General Jeff Sessions for recusing himself from the Russia probe. All of these actions may focus a case by Mr. Mueller against the president personally for both obstruction of justice and witness tampering.
“It makes it look like you’re cooking a story, and prosecutors are always looking out for it,” Julie R. O’Sullivan, a law professor at Georgetown University and expert on white-collar criminal investigations, told the New York Times. “It gets at the issue of consciousness of guilt in an obstruction case or witness tampering case because if you didn’t do anything wrong, why are you doing that?” she added.
Seth Abramson, a former federal prosecutor tweeted:
People misunderstand the sorts of conversations defense lawyers have with their clients: as I can say from long experience, Trump's lawyers would have EXPRESSLY told him BEFOREHAND that the actions we know he later engaged in constituted FELONY WITNESS TAMPERING.
So yes—he knew.
— Seth Abramson (@SethAbramson) March 8, 2018
During his show “The Beat” MSNBC’s chief legal correspondent Ari Melber stated that he believed the revelation of Trump’s conversations with McGahn and Priebus also could lead Mueller to add the charge of witness tampering against Trump.
The conclusion from all the attorneys who have commented on this story Trump was way out of line in talking to witnesses. At the very least it created “the appearance of impropriety.” And in a worst-case scenario, it may lead to more federal criminal charges being made against the President of the United States.