Counsel for Michael Cohen announced today that due to threats made by Trump and Giuliani against him, and his family, he will not testify to Congress on February 7th as previously scheduled. The statement read, in part:
“Due to ongoing threats against his family from President Trump and Mr. Giuliani, as recently as this weekend, as well as Mr. Cohen’s continued cooperation with ongoing investigations, by advice of counsel, Mr. Cohen’s appearance will be postponed to a later date.”
This is a remarkable statement. A witness in a Federal criminal investigation, and in a Congressional investigation, just stated that he will not testify because of threats by the President of the United States made against his family (in particular his wife and father-in-law). Let that sink in.
The President’s threats included a series of tweets. As recently as last weekend we had this tweet claiming Cohen was lying to reduce his jail time, with the nation’s chief law enforcement officer urging investigation of Cohen’s father-in-law:
Then there is this pair of tweets from early December, urging that Cohen’s wife and father-in-law be prosecuted, while also pushing for a harsh sentence against the witness.
It’s bad enough that the President of the United States, the man in charge of the agencies empowered to investigate, is browbeating an active witness in a criminal investigation, but he is also threatening the man’s family. With these facts in mind we turn to two notable provisions in the relevant statute at 18 U.S.C. 1512.
b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to — influence, delay, or prevent the testimony of any person in an official proceeding . . .
(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from —
(1) attending or testifying in an official proceeding
Either of these is a serious felony. The provisions may seem similar, but the differences are important in this case. The President is arguably guilty of both, but the second is particularly on point and I find no way the President is not guilty of this one.
However, let’s start with the first provision. The relevant elements are:
- Intimidation, threat or corrupt persuasion.
- with the intent to influence or delay testimony.
- in an official proceeding.
“Intent” is where the challenge comes in for prosecuting Trump. The intent has to be to influence or delay the testimony. Notably, if that intent is present it does not matter if the testimony was not actually delayed or influenced, a point important to the second statutory provision.
Let’s move to that second statutory provision. The relevant elements are:
- Intentional harassment.
- Which hinders, delays, or dissuades another.
- From attending or testifying in an official hearing.
Notice how the intent requirement has shifted here? The only intent requirement is in the harassment. However, these elements have the additional burden that the harassment did actually impact the testimony by delaying or dissuading the witness.
In fulfillment of these three elements I tie them to the facts.
- Trump’s tweets were intentional. He did not tweet by accident. His tweets were harassment, particularly their efforts to drag his family into the investigation.
- They did, in fact, dissuade Cohen.
- From attending or testifying in an official hearing (before Congress).
The key here is that the witness was actually influenced (dissuaded from testifying or delayed from testifying) by intentional harassment from the President. It is in this one, where the intent to influence the witness does not have to be proven, only that the harassment did influence the witness, that I see no escape in concluding the President is criminally liable. Under this statute, mere harassment that actually convinces a witness to not testify, or that delays testimony, is a felony.
For those seeking an impeachable offense, I offer you one. Ironclad.