A Matter of Opinion?

How Court Martial Of Deserter Relates To Trump Tweet Calling For Sessions To Fire Special Counsel Mueller.

Something We Can All Relate To

At work your boss approaches you and says “Keith has placed this company in a terrible situation, you should fire Keith right now before he stains our company any further.” How are you going to interpret that? Was your boss just opining, or was he telling you to fire Keith? Doesn’t that “right now” part convey imperative? Particularly in light of the stated imminent harm to your company if you don’t fire Keith? The use of the word “should” certainly doesn’t reduce it to mere opinion, anymore than your boss telling you that “should” work late to finish some project does.

A Dangerous Tweet

I am of course referring to this notorious Trump tweet.

The tweet in question has attracted attention because it appears to direct Attorney General Sessions to fire Special Prosecutor Robert Mueller to end his investigation into possible Trump Campaign collusion with Russia. Many believe this statement is powerful evidence for obstruction of justice by the President, comparable to Nixon’s firing of Special Prosecutor Archibald Cox in the infamous “Saturday Night Massacre.” When the House Judiciary Committee drafted articles of impeachment against Nixon, the charges included obstruction of justice for:

“interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force.”

I have discussed the definitions of obstruction of justice before. Basically, it can include “any threatening letter or communication that influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”

A Nonsensical Explanation

Trump’s people have rushed to innocently explain away the tweet as a benign expression of mere opinion, and not an order. These explanations seem to accept that, if viewed as an order, Trump’s tweet is evidence of obstruction of justice.

Supposed Trump attorney Rudy Giuliani, and happy-go-lucky spokeswoman Sarah Sanders, both rushed to claim Trump’s tweet was merely “opinion” and his tweeting such “opinion” was protected as a First Amendment Constitutional right. They argue that by using the word “should” instead of “must” it was not an order.

In terms of defeating the obstruction of justice claim, this defense falls short. Trump ordered Sessions to fire Mueller. This is supported by common sense, strict construction of the terms, and the concept of what constitutes orders from a superior.

The Team Trump Position Defies Common Sense and Context.

As the example above illustrates, common sense dictates that when your boss says that you “should” do something, you had better do it. It would be hard to find anyone, remaining employed, who doesn’t understand this.

Context matters too. When the boss’s statement about what you “should” do is in the context of the need for it to be done “right now” because of the “terrible situation” we are in, there can be little doubt that you had better damn well do it.

The compulsive nature of the directive is further enhanced if in the context of the boss having made clear he blames you for the “terrible situation” he now says you should fix.

With the boss going so far as to describe your own continued employment as “beleaguered.”

Or the boss telling you that he wishes he had picked someone else for the job than you.

Now put the message, in all that context, from your boss that “Keith has placed this company in a terrible situation, you should fire Keith right now before he stains our company any further.”

Definitions (“should vs. “ought”)

Trump’s position is not even in line with true definition of the word “should.”

This definition, in providing synonyms simply says “see must.”

“Should” is at least supposed mean “must.” To be sure, the dictionary goes on to say its most common meaning in modern English has evolved to mean the less commanding “ought.”

Okay, so be it. If you substitute “ought” in those statements, do you think you really get a different result that makes this not an order? “Keith has placed this company in a terrible situation, you ought to fire Keith right now before he stains our company any further.”

The Trump statement would change to “this is a terrible situation and Attorney General Jeff Sessions ought to stop this Rigged Witch Hunt right now, before it continues to stain our country.”

In context, do you really think the substitution of “ought to” changes anything?

Giuliani’s 1st Amendment argument is patently absurd. The definition of obstruction of justice includes “any threatening letter or communication.” Quite clearly, simply saying it is a communication is no defense at all. It’s like trying to create a 1st Amendment defense for perjury. Certain words create criminal liability, to include those words that try to deceive or intimidate law enforcement.

The Military Way

As an Army Officer, in my Officer’s Basic Course, I was taught that words like “should” still convey an order. If the General says, “Captain, I think you should take that hill,” the proper interpretation of the statement is that the General has ordered you to take that hill. A Captain interpreting such a statement to mean merely that he ought take the hill, if he feels like it, is not likely to be a Captain much longer.

This Has Happened Before: Donald Trump, A Court Martial, And Unlawful Command Influence

A case in the military also provides an analogous example of similar “opining” by the President, which nonetheless had legal consequences the President did not like.

I previously discussed the example of the Trump’s “Unlawful Command Influence” in the case of Army Sergeant Bowe Bergdahl. Bergdahl deserted to the Taliban before the Obama administration negotiated his release. As a candidate, Trump was critical of Bergdahl’s release and “opined” Bergdahl should be shot for treason, going so far as to say that if he elected he might make that happen.

Before Trump assumed office court martial proceedings were begun that continued after Trump became President. Bergdahl’s legal team motioned to dismiss the charges on grounds that the new Commander in Chief’s comments constituted “Unlawful Command Influence” over the judicial proceedings. The Uniform Code of Military Justice (part of the United States Code) prohibits any military person from attempting to “influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case.”

If this sounds related to the concept of obstruction of justice, it should. While designed to protect the defendant, it still incorporates the notion that authority should not be used to taint investigatory and judicial processes.

Trump was at first saved from the improvidence of his words. The judge ruled against the Defense’s motion to dismiss on grounds the statements were made by Trump when he was a candidate, before he became Commander in Chief. The judge dismissed it as just “inflammatory campaign rhetoric.

Even so, the Judge’s decision was a clear warning to Trump to not “opine” on this matter now that he was President. However, Trump just lacked that minimum level of self control.

After pleading guilty, Bergdahl was scheduled for sentencing. Trump took the opportunity to “opine” that he had already commented about what should happen to Bergdahl and that he still felt that way. The defense quickly refiled their motion to dismiss arguing the new statement, as President, incorporating the campaign rhetoric was Unlawful Command Influence.

The Judge agreed that Trump’s comment as President constituted Unlawful Command Influence. While the Judge did not dismiss the case, the Judge did grant the Defendant relief in sentencing, reducing the sentence to one that included no jail time. The Judge wrote:

the plain meaning of the President’s words to any reasonable hearer could be that in spite of knowing that he should not comment on the pending sentencing in this case he wanted to make sure everyone remembered what he really thinks should happen to the accused. He is the commander in chief of all the armed forces. He has the power to fire or otherwise take adverse administrative action against any active army officer involved in the trial of this case from sentencing forward.”

Likewise Trump has the power to fire, or take other adverse administrative action, against Jeff Sessions. This, by extension, includes the power to fire Special Counsel Mueller. These potentialities have legal effect, in both evaluating whether the President exercised Unlawful Command Influence against Bowe Bergdahl, and whether the President obstructed justice against Special Prosecutor Robert Mueller.

Opinion or not, Trump’s tweet was intended to intimidate and influence the course of Special Prosecutor Mueller’s investigation. Just as it did not matter that his effort to influence the Judge in the Bergdahl case failed, it does not matter if Trump’s tweet does not result in the firing of Mueller, or if Mueller is not cowed by it.

Trump’s tweet strongly suggests obstruction of justice. This is particularly true when it is part of a pattern of dozens of tweets attacking the Special Counsel, and describing the investigation as a witch hunt. This pattern of intimidation is even more evident given thatTrump fired the person previously in charge of the investigation, James Comey, and said he did it because of the Russia investigation.

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Written by

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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