My new essay is posted at NBC News, explaining the difficulty of charging Trump with witness tampering (even though Republicans made an identical charge against Bill Clinton).
Here is the gist:
Why Trump Witness Tampering Would Be So Hard to Prove
Steven Lubet
July 31, 2022
It turns out the former president himself tried to reach out to a potential witness, with a source telling NBC News earlier this month that he had placed a telephone call to a member of the White House support staff who was in talks with the committee. [T]here is a lot of territory between what everyone naturally assumes — that Trump was attempting to tamper with a witness — and bringing a criminal charge, much less securing a conviction. A successful prosecution would require more information than Cheney has provided so far.
[A] witness’s own interpretation of ambiguous circumstances — “I felt intimidated” — is not conclusive unless there is additional proof of actual intent. Although intent can be inferred from the surrounding circumstances, an unanswered telephone call gives prosecutors precious little to work with despite the blatant implication that Trump was up to no good.
It may have been Trump’s good luck that the Jan. 6 committee witness declined his call. Without evidence of overt pressure, it will probably be impossible for the Justice Department to fashion a witness tampering prosecution.
But as every New York mobster knows, silent messages can be the most coercive, with the least legal accountability, so long as the godfather’s meaning is unmistakable. We may never find out what Trump planned to say to the committee witness. Perhaps he thought the caller ID would be enough to say it all.
You can read the entire essay -- with references to Bill Clinton and Kennedy v. Bremerton -- at NBC News.
My original draft had this link to The Godfather, but it was removed during editing.
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