I recently wrote a Washington Post column explaining that, while I viewed the moves by President Donald Trump against impeachment witnesses was wrong, it was not criminal as claimed by legal analysts like CNN’s Elie Honig. Yesterday, Honig responded by arguing in a column that he and “other former prosecutors” are quite confident that the action clearly constituted the crime of witness retaliation. While Honig does not actually explain how the President’s conduct specifically violated the stated elements in the federal code, even a cursory consideration of the elements of the crime belie his assertion. Trump’s actions with regard to Vineland and Sondland would not constitute criminal witness retaliation.
For the last three years, we have had a series of crimes declared as “clearly established” by former prosecutors based on alleged Russian collusion, Ukrainian collusion, and other controversies. Indeed, Honig most recently, insisted in the Ukrainian controversy that the crimes of bribery and extortion were clear as crime and impeachable offenses. In my recent testimony before the House Judiciary Committee regarding President Trump’s impeachment, I opposed the position of my fellow witnesses that the definition of actual crimes is immaterial to their use as the basis for impeachment — and I specifically opposed impeachment articles based on bribery, extortion, campaign finance violations or obstruction of justice. The committee ultimately rejected those articles and adopted the only two articles I felt could be legitimately advanced: abuse of power, obstruction of Congress. Chairman Jerrold Nadler even ended the hearing by quoting my position on abuse of power. Our only disagreement was that I opposed impeachment on this record as incomplete and insufficient for submission to the Senate.
Honig ‘s claim of criminal witness retaliation fares no better than his earlier assertions of established criminal conduct. He is simply wrong that these actions could be maintained as criminal acts. As I stated in my column, this does not mean that the actions are not objectionable even reprehensible, but they are not criminal. I was highly critical of the move as unnecessary and presumptively retaliatory. I was particularly harsh in my statements about the brother of Vindman being moved as akin to a medieval blood punishment. The fact that this looks like retaliation however does not mean that it meets the test for specific crime of witness retaliation.
Crimes have elements and those elements are essential unless, it seems, the accused is Donald Trump. CNN has particularly been a font of claimed clear criminal acts by Trump, a place with viewers can be assured that the evidence is clear and the crimes established.
Now let’s look at this crime. First and foremost, Honig notes that either obstruction or tampering “arguably could apply” also as criminal charges. I addresses these crimes in my column but it is important to note the clear disconnect in this logic. Honig is saying that the moving of a witness like Vindman can be obstruction or tampering “after” the trial is over and he has given his testimony. There is no obstruction of a past trial, particularly one where the defendant was acquitted. It is not unclear how Honig believes that a later transfer tampers with testimony that has already been given in a case that is closed.
Now let’s specifically deal with Honig’s insistence that this is clearly witness retaliation. In the 1980s, Congress strengthened protections for witnesses with new provision on 18 U.S.C § 1512 which augments the federal witness tampering law under 18 U.S.C. § 1503, which broadened the definition of witness tampering. The structure of 18 U.S.C. § 1513 is similar to that of 18 U.S.C. § 1512 but is viewed as broadening its application. However, it still has criminal elements and those elements undermine credible suggestions that this falls within the statutory definitions for this crime.
On the elements, there are immediate problems with this claim. Prosecutors will sometimes brush over elements, they are also regularly chastised by courts by doing so. Here are the elements from the relevant part of 18 U.S.C. 1513:
e)Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.
Immediate problems arise from the language.
First, there is the question of whether a congressional committee in this matter involves providing information to a law enforcement officer. However, even assuming that it does, there is the element of given information of “the commission or possible commission of a Federal offense.” A “federal offense” is defined, in 18 U.S.C. 3156 (a)(2) as “any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.” The House admitted that this was the first impeachment based on non-criminal articles of impeachment and the witnesses, including Vindman, agreed that they did not see the commission of a criminal act in their judgment.
Second, there is the suggestion by Honig that, once a witness testifies at a congressional committee, they are effectively immune from transfers deemed inimical or negative for their careers. Even outside of the White House that would be a rather bizarre rule. It would mean that, regardless of whether testimony is accepted as true or given according to proper guidelines, the witness is somehow protected for all time or at least some undefined period after the trial is over.
This becomes even more bizarre in the context of the White House where courts have been clear that a President may select his staff and advisers as virtual at-will employees. So, according to Honig, the President is required to continue to work with an official on a daily basis who accused him of sacrificing national security for personal gain and then lied about it. Moreover, Vindman would have some vested hold on a discretionary position until he, not the President, decided that he would move on. In this way, Congress would need only to line up staffers to testify against the wishes of a president to fill the White House with staffers who would be unmovable for the president. Indeed, they could hold such a hearing at the start of an Administration to freeze the staff of the prior president in place. The same is true with Sondland. Honig suggests that a president is required to keep an ambassador and work with him despite the fact that Sondland basically called him a liar. An ambassador must speak on behalf of the president on matters of policy. The prior testimony can be viewed as creating an uncertainty as to the ability of Sondland to speak for Trump or Trump’s own veracity. It also suggests to European allies that the ambassador no longer enjoys a close relationship with the President, which is manifestly obvious.
Honig also does not address the main point of my article. While I criticized the President for these actions, Sondland and Vindman disobeyed a direct instruction not to testify while the White House challenged the right to call witnesses. They did so without waiting for a court order, as did other called witnesses. That would be viewed as a legitimate basis for transfer or termination by most courts in a White House position.
We can clearly have good-faith disagreements on some of these points. However, I fail to see how all of these barriers to a criminal charge can be dismissed or how Honig and others can claim that this is a compelling basis for a criminal charge. Viewers may be thrilled or relieved to hear such analysis but it is clearly not reflective of the actual elements of the crime. Even after a long litany of such dubious and rejected criminal claims, viewers want to hear that this President is a proven criminal. However, legal analysts are asked to offer unvarnished and unbiased views of the law.
The test is whether such a conclusion would be sustained if the name of the defendant was not Donald J. Trump. I do not believe that this view is meets that test.