2/ @gtconway3d, @neal_katyal and other highly respected attorneys quickly noted that Trump’s tweet looks a lot like witness tampering. They’re right—it does. But proving beyond a reasonable doubt that it’s witness tampering is more challenging than it might seem at first glance.
3/ I’ve included the relevant jury instruction below. Mueller would need to prove, among other things, that Trump had “corrupt” intent and acted with the intent to cause Stone to withhold testimony.
4/ Trump has said and done many things over the last two years that suggest that he often acts with the intent to impede the Mueller investigation—I collected many of them in the piece I wrote in January (below).
5/ But for purposes of a stand-alone witness tampering charge, what matters is Trump’s intent when he wrote this specific tweet. Evidence of his other acts would be very relevant but not dispositive.
6/ Trump’s lawyers would argue that the purpose of his tweet was to influence the public, not Stone, and that they could have spoken to Stone’s attorney privately if Trump actually wanted to influence him.
7/ Trump says a great many things on Twitter and isn’t careful with his words, so some courts have concluded that his words can’t be taken literally or seriously. Here is a short thread discussing those cases (which of course were in a different context):
10/ Because of the challenges of proving “corrupt” intent, and the legal challenges Trump could bring, I think the best way for a prosecutor to charge today’s tweet would be as part of a larger conspiracy to obstruct justice, instead of as a stand-alone crime.
11/ I’ve been convinced since January that Trump obstructed justice for the reasons I explained in the piece linked earlier in the thread. That larger scheme would be easier to prove than a case based on a single tweet.
12/ But since the U.S. Senate, not ordinary Americans, would be the jury it’s unclear to me how much this will matter. It’s hard for me to imagine 20 Republican Senators voting to convict Trump for obstructing justice. It’s unclear what it would take for them to convict. /end
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