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Former US Ambassador to Ukraine Marie Yovanovitch arrives for the House Select Intelligence Committee hearing on the
impeachment inquiry into President Donald Trump on November 15, 2019. | Caroline Brehman/CQ-Roll Call/Getty Images

Did Trump just commit witness

tampering? I asked 7 legal
experts.
Probably not, but here’s why it likely doesn’t matter anyway.
By Sean Illing @seanilling sean.illing@vox.com Nov 15, 2019, 2:40pm EST

When Marie Yovanovitch, the former ambassador to Ukraine, testified on

Capitol Hill Friday morning during the second day of impeachment hearings
against President Donald Trump, it didn’t take the president long to send a tweet
attacking her.

“Everywhere Marie Yovanovitch went turned bad,” Trump wrote. “She started off
in Somalia, how did that go? Then fast forward to Ukraine, where the new

In Charlie’s Angels, Kristen

Ukrainian President spoke unfavorably about her in my second phone call with
SKIP AD
him. it is a U.S. President’s absolute right to appoint ambassadors.”

Yovanovitch was ousted from her ambassadorship back in April after she
apparently got in the way of Trump’s efforts to persuade the government of
Ukraine to investigate Joe Biden.

Her testimony on Friday was clear, calm, and mostly unflattering to the Trump
administration. “As Foreign Service professionals are being denigrated and
undermined,” she told members of Congress, “the institution is also being
degraded. This will soon cause real harm, if it hasn’t already.”

Former US Ambassador to Ukraine Marie Yovanovitch testifies before the House Select Intelligence Committee on Friday,
November 15, 2019. | Caroline Brehman/CQ-Roll Call/Getty Images

Trump has a habit of blasting critics on Twitter. But some observers — including
some loyal to the president — said this tweet was, at best, a very bad idea.
But did this tweet really cross a legal line into witness tampering?

I put this question to seven legal experts. Their responses, edited for clarity and
length, are below.

There wasn’t a perfect consensus, but most experts agreed that Trump’s tweet
falls pretty clearly within our understanding of an impeachable offense. As to
whether or not it constitutes a crime, the question is almost irrelevant since
prosecution is all but impossible.

Ciara Torres-Spelliscy, law professor, Stetson University

According to the Department of Justice, intimidation of witnesses testifying
before Congress is a crime under 18 U.S.C. § 1515(a)(1). However, in this case it is
the president who is allegedly doing the witness intimidation and an OLC opinion
(see Indicting a President Is Not Foreclosed: The Complex History - Lawfare)
states that a sitting president cannot be indicted.

Just as Trump cannot be indicted for campaign finance crimes while president
such as those involving Michael Cohen, he similarly could not be indicted for
witness intimidation including his tweets this morning either while he is still in
office. But accountability can come in different forms. The House of
Representatives could add witness intimidation as a separate article of
impeachment. Also, once Trump is an ex-president, federal prosecutors could
charge him with witness intimidation if they chose.

Joshua Dressler, law professor, Ohio State University

To be guilty, Trump would need to actually intimidate the witness from testifying,
which he didn’t, and it would have to be proven that it was his intention to
intimidate. He could easily argue that he is just informing us of how bad the
witness was at her job or he even could say, “you know I bad mouth people,
witness or no witness. That’s just my ugly habit.”
Paul Butler, law professor, Georgetown University
Trump’s tweet is a stone cold thug move. Let’s say I am federal prosecutor
investigating a mob boss. A witness testifies that she felt intimidated by the mob
boss. As she speaks, the mob boss denigrates the witness in a tweet.

I would halt the proceeding — for the safety of the witness — and ask the judge for
a warrant for the arrest of the mob boss. The United States Criminal Code makes
witness intimidation a felony. The fact that a mob boss lives in the White House
should not excuse him from being brought to justice.

Diane Marie Amann, law professor, University of Georgia

Impeachment is a legal process, in that the US Constitution provides for charging
of “high crimes or misdemeanors” by the House, followed by trial in the Senate.
Impeachment is not a federal criminal proceeding, however.

For this reason, evaluation of the president’s statements — in tweets, in phone

conversations, at press gaggles, and the like — should turn not on whether the
precise elements of a federal crime like witness tampering have been met, but
rather on whether the statements constitute, or contribute to, abuses of the
public trust that justify the president’s impeachment and removal from office.

Peter Shane, law professor, Ohio State University

If Trump were a criminal defendant charged with witness tampering, I assume his
defenses would be: (1) he couldn’t have been intimidating Ambassador
Yovanovitch because she was already testifying, and (2) his tweets were not
directed specifically at any other witness.

Because I am not a criminal law expert, I do not know if (2) would or would not be
a legally cognizable defense. (If a mob boss tweets, “Bad things are gonna happen
to anyone who testifies about my kid,” I don’t know if it’s a defense that he would
not have explicitly targeted a specific witness.)

Putting that aside, however, it must be said for the gazillionth time that
impeachment is not a criminal process. For the president of the United States to
seek to interfere by intimidation with testimony before a congressional hearing
plainly falls within Alexander Hamilton’s understanding of an impeachable offense:
“an abuse or violation of some public trust” that amounts to an injury “done
immediately to the society itself.”

Peter Margulies, law professor, Roger Williams University School of

Law
Trump’s live-tweeting during Ambassador Yovanovitch’s testimony was
inappropriate but did not constitute witness tampering. The federal crime of
witness tampering requires proof of intent to influence the witness. Trump’s
critique of Yovanovitch’s performance as a diplomat in Somalia and elsewhere
doesn’t show that crucial intent to influence.

If Trump had threatened Yovanovitch’s position in the U.S. foreign service — for
which she thankfully has statutory protections — the charge of witness tampering
might stick. But mere criticism — no matter how partisan, ill-founded, and unfair —
doesn’t equal witness tampering. That’s also true of witness tampering in the
context of impeachment.

In Federalist No. 66, Alexander Hamilton envisioned impeachment as a political

process run by Congress. That means Congress can impeach a president even if
the executive actions at issue are not literally crimes but are abuses of power, as
in the presidential phone call that triggered the Ukraine impeachment inquiry.

But Hamilton and the rest of the framers knew that politics is sometimes unfair;
with the rise of political parties early in the Republic, all of the major players during
the founding era were subject to scurrilous charges on a daily basis. For example,
supporters of Jefferson attacked President Washington as a supposed lackey of
Hamilton and Hamilton as an agent of Great Britain. Washington wisely didn’t see
fit to respond to these allegations himself, but criticizing his accusers would not
have been witness tampering, even if Washington’s opponents had sought to
impeach him (as they came close to doing with Washington’s successor, John
Adams).
The “abuse of power” theory of impeachable offenses allows the President and
his supporters the right of reply in the political realm. Criticism of a witness’s past
is part of that political process. It may show that the president doesn’t “get it” and
will continue to abuse his power, making impeachment all the more imperative.
But it’s not witness tampering.

Your guide to the Donald Trump impeachment saga

Understand the impeachment process, from its history to what comes next. Explore the full
guide here.

Jed Shugerman, law professor, Fordham University

High crimes and misdemeanors are not limited to felonies. In its articles of
impeachment, the House should add Trump’s repeated practice of witness
intimidation over three years as an abuse of power and as high misdemeanors. In
context, this behavior is clearly impeachable.

But many legal commentators argued explicitly that Trump’s tweets this morning
were crimes of witness intimidation, tampering, and obstruction, and I think that’s
a mistake. Such an interpretation runs the risk of creating a slippery slope to
infringe on the free speech of potential defendants to criticize witnesses and
make public their own defense. They run the risk of communicating an overly
aggressive scorched-earth approach to criminal law by Trump’s critics, who have
no shortage of stronger legal arguments.

The content of the tweets were not threats. One statement that commentators
focus on is the following: “They call it ‘serving at the pleasure of the President.’”
They suggest it’s a threat to fire a current employee. But in context, it was an
explanation for his power to have removed her earlier. There is a valid question
about whether a boss needs to be more careful than even a remote implication
about firing in retaliation, but a fair reading of context suggests this didn’t cross
that line.

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