Anne Milgram @AnneMilgram and Preet Bharara @PreetBharara
This is Spocko in San Francisco, you called Trump’s threat to the whistle blower an abomination on your October 1 Cafe Insider episode, but will Trump be charged for threatening the whistle blower(s) Does the witness tampering statue apply to whistleblowers? What about the others in government who gave the whistle blower information? Trump is threatening them too.
Here is the section of the show that discussed it. 2 minutes 23 seconds.
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NOW the detailed questions, because you are lawyers and know politics too.
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I’ve seen the right wing media spin the President’s threats as no big deal, just “tough talk” I have a few questions:
- Are threats to witnesses from elected officials protected under the 1st Amendment?
- If the threat is public and didn’t work, because the person testified, does that mean that the treat was legal?
- Can the person who did the threatening be charged with breaking the law?
- Can the person who was threatened sue the person(s) who threatened them in a civil case for damages?
- If a witness or whistle blower WANTED to charge Trump and others for witness tampering, which department would they take it to? Specifically, where would the whistleblowers’ lawyer,@AndrewBakaj report threats to?
- Who decides to prosecute?
- What kind of evidence do prosecutors need to make the charges stick?
1729. PROTECTION OF GOVERNMENT PROCESSES — TAMPERING WITH VICTIMS, WITNESSES, OR INFORMANTS — 18 U.S.C. 1512 (Link to Justice Dept statue.)
It applies to proceedings before Congress, executive departments, and administrative agencies, and to civil and criminal judicial proceedings, including grand jury proceedings.
I also looked at who it applies to:
Section 1512 protects potential as well as actual witnesses. With the addition of the words “any person,” it is clear that a witness is “one who knew or was expected to know material facts and was expected to testify to them before pending judicial proceedings.”
I’ve see that lawyers try to dismiss or invalidate charges of threatening witnesses.Based on what we know about Trump and his defenses, I count at least eight ways he will avoid the charge and run out the clock. Here’s my list, are there others? How do prosecutors get around these?
- He did not “knowingly” and “intentionally” mean to intimidate any person with his tweets and comment. They will say he was just commenting on history and how we dealt with spies in the old days.
- He was joking. He has a history of making hyperbolic threats.
- He has no obligation to be honest to the public or the press (The Corey Lewandowski defense)
- He did not make this statement while under oath.
- He was actually fulfilling his oath of office, “defending the Constitution of the United States against all enemies, foreign and domestic” because he believes the whistle blower and certain witnesses are enemies of the United States of which he is the duly elected leader
- His “general state of mind, commonly referred to as “general intent” was not corrupt.
- His comments did not rise to the level of a “true threat” Elonis v. United States, 575 U.S. (2015).
- People in business use comments like this to others as part of normal “deal making” and “negotiations” the whistler blower and witnesses are over reacting.
I like this quote from an analysis of the case: “The more imaginative types of witness tampering as well as forms of tampering defying enumeration were still prohibited by the omnibus provision of § 1503. United States v. Lester, 749 F.2d 1288 (9th Cir. 1984).”
I would like you and Anne to discuss the legal tricks, word choices and questions about intent that will be used by Trump to avoid being charged with witness tampering. Avoiding being charged with crimes is one way the President wins politically. Delaying testimony by threatening witnesses is another. Trump has gotten away with threatening people his entire life, with the AG on his side, will he get away with it this time too?
Live Long And Prosper
Spocko
P.S. I covered this on the blog Hullabaloo on September 30, #AskPreet How will the WH mob avoid prosecution for witness tampering?
