Mueller Looking At Trump’s Twitter Feed As Part Of Obstruction Investigation

Special Counsel Robert Mueller is reportedly looking at the President's Twitter feed as part of his ongoing investigation.

Late yesterday, The New York Times reported that Special Counsel Robert Mueller has been looking at President Trump’s Twitter feed as part of his wider investigation into whether or not the President has attempted to obstruct the investigation into to Russian interference in the 2016 election and possible collusion between Trump officials and persons connected to the Russian Government:

WASHINGTON — For years, President Trump has used Twitter as his go-to public relations weapon, mounting a barrage of attacks on celebrities and then political rivals even after advisers warned he could be creating legal problems for himself.

Those concerns now turn out to be well founded. The special counsel, Robert S. Mueller III, is scrutinizing tweets and negative statements from the president about Attorney General Jeff Sessions and the former F.B.I. director James B. Comey, according to three people briefed on the matter.

Several of the remarks came as Mr. Trump was also privately pressuring the men — both key witnesses in the inquiry — about the investigation, and Mr. Mueller is examining whether the actions add up to attempts to obstruct the investigation by both intimidating witnesses and pressuring senior law enforcement officials to tamp down the inquiry.

Mr. Mueller wants to question the president about the tweets. His interest in them is the latest addition to a range of presidential actions he is investigating as a possible obstruction case: private interactions with Mr. Comey, Mr. Sessions and other senior administration officials about the Russia inquiry; misleading White House statements; public attacks; and possible pardon offers to potential witnesses.

None of what Mr. Mueller has homed in on constitutes obstruction, Mr. Trump’s lawyers said. They argued that most of the presidential acts under scrutiny, including the firing of Mr. Comey, fall under Mr. Trump’s authority as the head of the executive branch and insisted that he should not even have to answer Mr. Mueller’s questions about obstruction.

But privately, some of the lawyers have expressed concern that Mr. Mueller will stitch together several episodes, encounters and pieces of evidence, like the tweets, to build a case that the president embarked on a broad effort to interfere with the investigation. Prosecutors who lack one slam-dunk piece of evidence in obstruction cases often search for a larger pattern of behavior, legal experts said.

The special counsel’s investigators have told Mr. Trump’s lawyers they are examining the tweets under a wide-ranging obstruction-of-justice law beefed up after the Enron accounting scandal, according to the three people. The investigators did not explicitly say they were examining possible witness tampering, but the nature of the questions they want to ask the president, and the fact that they are scrutinizing his actions under a section of the United States Code titled ”Tampering With a Witness, Victim, or an Informant,” raised concerns for his lawyers about Mr. Trump’s exposure in the investigation.

A spokesman for Mr. Mueller’s office declined to comment.

Mr. Trump’s lead lawyer in the case, Rudolph W. Giuliani, dismissed Mr. Mueller’s interest in the tweets as part of a desperate quest to sink the president.

“If you’re going to obstruct justice, you do it quietly and secretly, not in public,” Mr. Giuliani said.

Mr. Giuliani was referring to more typical obstruction cases, where prosecutors focus on measures taken in private, like bribing witnesses, destroying evidence or lying under oath. While some of Mr. Trump’s private acts are under scrutiny, like asking Mr. Comey for loyalty, his public conduct is as well. That sets this investigation apart, even from those of other presidents; Richard M. Nixon and Bill Clinton were accused of privately trying to influence witness testimony.

But as in those cases, federal investigators are seeking to determine whether Mr. Trump was trying to use his power to punish anyone who did not go along with his attempts to curtail the investigation.

If Mr. Mueller opts to tailor a narrative that the president tried to obstruct the Russia investigation, he would have to clear several hurdles to make a strong case. He would need credible witnesses (Mr. Comey and Mr. Sessions have been the target of concerted attacks by Mr. Trump and allies, undercutting their standing) and evidence that Mr. Trump had criminal intent (the special counsel has told the president’s lawyers he needs to question him to determine this).

“There’s rarely evidence that someone sits down and says, ‘I intend to commit a crime,’ so any type of investigation hangs on using additional evidence to build a narrative arc that hangs together,” said Samuel W. Buell, a professor of law at Duke University and former senior federal prosecutor. “That’s why a prosecutor wants more pieces of evidence. You need to lock down the argument.”

As a preliminary matter, it’s not at all surprising that Mueller and his investigators would be diving into Trump’s Twitter feed as part of their investigation. Even leaving aside for the moment the question of whether or not it ends up leading to evidence of potential obstruction, or whether it can be used to impeach other claims or testimony that the President may offer in his defense in the future, it’s a window into the mind of the person who is quite clearly the target of the entire Russia investigation even if this fact has yet to be officially acknowledged by the Office of Special Counsel. In that respect, this Twitter feed, along with other public statements that the President is a potentially helpful glimpse into the mind of the President and arguably may be helpful in leading to the discovery of other evidence that could be of use to the Special Counsel. As I’ve noted in the past, it’s most likely the case that all of the world’s major intelligence agencies have people devoted to following and trying to interpret the President’s tweets for the same reason. In the case of the Special Counsel, though, these tweets could end up coming back to bite the President in some very significant ways.

On their own, the President’s tweets likely would not be sufficient on their own to prove an obstruction case. However, taken together with other evidence as well as actions that the President took in public, such as the decision to fire James Comey and conversations he had in public, such as his discussion with Comey in February 2017 about potentially dropping the investigation of former National Security Adviser Michael Flynn, who has since pled guilty and is cooperating with Mueller’s investigation. This is especially true when you take into consideration the many, many times in which the President has denounced the Russia investigation as a “witch hunt,” attacked Mueller and his investigators, attacked his own Attorney General, attacked the Department of Justice and the F.B.I. in what is obviously an effort to undermine the Russia investigation, and made claims about the ongoing investigation that are quite simply not true. The New York Times cites several examples of this in the report linked above, and Trump’s Twitter feed is replete with numerous instances in which the President used his Twitter feed to advance each of these attacks.

So, while Trump’s tweets on their own may not prove an obstruction case they can arguably be used to place certain of the President’s actions into a context that, at the very least, certainly looks like it could constitute obstruction. Indeed, at some point, one has to wonder what the President’s obvious efforts to undermine the Russia investigation are all about if they aren’t an effort to obstruct Justice. While the President is entitled to the same presumption of innocence that any other actual or potential criminal defendant is entitled to, it’s also the case that his behavior so far is not the behavior you would expect from someone who didn’t have something to hide, whether it was something about his campaign’s collusion with Russian officials to gather information on Hillary Clinton or something about his personal or business affairs. In some sense, then, it’s not dissimilar from a criminal defendant who flees from police. If you Trump has nothing to hide, then why is he acting so much like a person who has something to hide? It seems as though Robert Mueller is asking the same question, and Trump’s Twitter feed is only feeding that suspicion.

FILED UNDER: Donald Trump, Law and the Courts, Politicians, Russia Investigation, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Michael Reynolds says:

    Thus dies @Pearce’s insistence that Tweets don’t matter. Turns out: they’re evidence in a criminal case.

    As it happens I’m just now writing a bit for my 2d mystery, explaining the importance of OpSec (Operational Security) and PerSec (Personal Security) for the career criminal. If only Trump had had the benefit of my wisdom back when he formed the Trump Crime Family, he wouldn’t be in such trouble now.

    There are two closely-related top priorities when committing crimes:
    1) Don’t create evidence.
    2) If you have no choice but to create evidence, make sure the cops can’t find it.

    Trump not only creates mountains of evidence, he practically hands it all to Mueller. He has pitiful OpSec and PerSec. I mean, he’s at the level of some dude sticking up a 7-11 with a security camera taping a unique and lurid neck tattoo. It’s embarrassing. If we’re going to have a mob boss as president, couldn’t we at least get a competent one?

  2. Stormy Dragon says:

    Womp womp

  3. Kathy says:

    Here’s what I think:

    Trump didn’t directly ask for or receive any information or other help from Russia, but people within his campaign did. trump knew about it, or some of it, and either approved it or turned a blind eye.

    If the former, then he’s part of a criminal conspiracy. if the latter, then it gets complicated. He has no obligation to stop or even report a crime, but one can argue he might be an accessory after the fact.

    It may not matter, as he’s clearly been covering it up. which is a crime, and taken concrete actions to obstruct justice such as firing the FBI director in charge of the investigation.

    Why is he covering up? Maybe because one or more of his brood are involved. Or, more likely, because he feels widespread knowledge of the help he got, would make him look like the weakling and fraud that he is.

    So, Donald, if you can actually read, you shouldn’t worry about any revelations. We already know you’re a weakling and a fraud.

  4. Not the IT Dept. says:

    Years from now, political observers will be in awe at how Trump’s lack of self-control in the presence of his cell phone did so much to sink his policies and administration. He’d be in so much LESS trouble if he’d just shut up, personally and electronically.

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  5. Michael Reynolds says:

    @Kathy:
    If I am invited to a meeting and I know the purpose of that meeting is dividing up the spoils from a bank robbery, and I take that meeting, and at some later time some of that stolen money turns up in my account, I’m going to prison.

    If Trump knew that the object of the meeting was to pass along stolen property – Clinton emails – (he did), and he agreed to that meeting, (he did), and either then or later profited from that theft, (Yep), he’s an accessory to the Russian crimes of hacking. At the very least.

    IANAL but I suspect receiving stolen goods is (or can be, depending probably on value), a felony, and likewise conspiracy to aid and abet hacking, and attempting then to cover up the crimes, are felonies as well.

  6. James Pearce says:

    Thus dies @Pearce’s insistence that Tweets don’t matter.

    Hahahaha.

    If the Tweets “matter,” the obstruction case may be weaker than you think.

    Prosecutors who lack one slam-dunk piece of evidence in obstruction cases often search for a larger pattern of behavior, legal experts said.

    Also, if the tweets “matter,” Trump will be our last president who uses the platform.

    (Please make the tweets matter.)

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  7. Michael Reynolds says:

    @James Pearce:

    Prosecutors who lack one slam-dunk piece of evidence in obstruction cases often search for a larger pattern of behavior, legal experts said.

    I make Mueller for a belt and suspenders guy. Probably 90% of criminal convictions (not counting pleas) lack anything like a ‘slam dunk.’ If that were the standard we’d have just one prison and we could use the rest for housing brown toddlers.

    Mueller is now working on ‘intent’ which rather suggests that Mueller has a pretty clear idea of underlying charges.

  8. wr says:

    @Michael Reynolds: “IANAL but I suspect receiving stolen goods is (or can be, depending probably on value), a felony, and likewise conspiracy to aid and abet hacking, and attempting then to cover up the crimes, are felonies as well.”

    I just served on a jury. One of the charges was possession of stolen property. That in itself is a crime.

  9. SenyorDave says:

    @James Pearce: I don’t see how you can make a serious argument that Trump’s tweets don’t matter. Would you be making that argument for other types of communication (letters, writings, phone conversations, speeches, non-phone conversations)?

    Twitter is Trump’s main form of communication. It has to matter.

  10. KM says:

    @SenyorDave :

    Would you be making that argument for other types of communication (letters, writings, phone conversations, speeches, non-phone conversations)?

    Not really, he seems to have something specifically against Twitter. He’s been asked that question several times before and I believe the answer amounted to a more polite Old Man Yelling at Cloud rationale. Basically, Twitter’s a waste of time and pointless so anything he does on that platform is therefore a waste of time and pointless and liberals are foolish to entertain any notion of importance for the whole shebang.

  11. James Pearce says:

    @Michael Reynolds:

    Probably 90% of criminal convictions (not counting pleas) lack anything like a ‘slam dunk.’

    If you’re going after an elected president, you need a slam dunk. This isn’t just a criminal matter ; it’s a political matter too, and let’s just be clear about something: Both sides will play by the “new” rules, if new rules are indeed what we need.

  12. KM says:

    @James Pearce :

    If you’re going after an elected president, you need a slam dunk.

    Did you miss the whole Clinton thing and a good portion of the 90’s? How in the world was that a slam dunk?

    Normally, I’d agree with you – if you take a swing, you better not miss. But that whole playing by the “new” rule now? That’s what’s happening for several decades now and it’s a major reason why conservatives are so pissed about Mueller. They took a swing at Bill and missed. They took several at Hillary, missed and are pissed they didn’t get the chance to do so at President Clinton. They threw jabs and feints at Obama but couldn’t find the ring. They’re LIVID that Trump’s getting the same treatment and it looks like blood might be drawn. They KNOW this has more substance than any of their attempts and can’t stand that “their guy” might go down when all the others didn’t.

  13. HarvardLaw92 says:

    @Michael Reynolds:

    The bottom line is that, Trump knew about the payoffs within the time context of the election. He conspired to violate and did violate federal campaign finance laws – felony style.

    Has everybody forgotten John Edwards already? This is not minor league stuff. People go to prison for this.

  14. Kathy says:

    @James Pearce:

    If you’re going after an elected president, you need a slam dunk.

    You would need one if you were writing a movie or a TV court room drama.

    In the real world, there’s rarely the ONE Overwhelming Piece of Evidence that Will Convict the Villain For Sure. Rather you have a lot of evidence and testimony pertaining not to one act, but to many.

  15. Joe says:

    The case against Trump will not be tried as a criminal case. Mueller has pretty much said he will follow the Justice Department position that you cannot indict a sitting president. It will be a report to Rosenstein that, God willing, will be turned over to Congress for impeachment proceedings.

    While I am sure that Mueller will prepare it like a criminal indictment on steroids, his goal will be to create a report that will – by it’s own narrative – force the American people to demand action and force Congress to pursue impeachment.

  16. SenyorDave says:

    @Joe: I agree that Trump will not be indicted. That begs the question as to others in the Trump Org or campaign for such things as money laundering, tax evasion, campaign law violations. I’m hoping that as Mueller wraps things up we see some indictments for more visible people like Javanka or Uday and Qusay.

  17. CSK says:

    @James Pearce:

    In June 2017, Sean Spicer said that Trump’s Tweets were to be regarded as official statements of the president. The DOJ arrived at the same determination.

    We know you regard Trump’s Twitterings as inconsequential. No one else does.

    What you’re saying is equivalent to saying: “I don’t like or eat Romaine lettuce. Therefore, no one should.”

  18. wr says:

    @CSK: “What you’re saying is equivalent to saying: “I don’t like or eat Romaine lettuce. Therefore, no one should.””

    Actually, it’s more like “I don’t like Romaine lettuce. Therefore it doesn’t exist.”

  19. CSK says:

    @wr:

    No, James Pearce acknowledges that the Tweets exist. He thinks they’re inconsequential, so we all should, despite the fact that they’re official statements by the president.

  20. Tyrell says:

    @Joe:
    No, people around here are wanting an end to this spurious investigation, which is basically a scheme. And it does not take long to figure out who is really behind this and throwing the switches.
    Some politicians and the news media criticised Director Hoover a lot. But even with some of his faults he would be better than what we have now.

  21. MarkedMan says:

    Gang, before you get too outraged over Pearce’s “slam dunk” comment let me remind you as to why he is here. He believes he is convincing people on the fence about Trump (not you or me) that these scandals are actually small potatoes and not worth worrying about. His goal is to get the masses to think “nothing to see here, move along, move along”. Nothing you say will convince him that he is wrong because he is not actually engaging in debate and he certainly does not see his audience to be those who are deeply knowledgeable of things like facts.

  22. Tyrell says:

    @MarkedMan: The main stream “news” (controlled) media is the one trying to “push the masses” with their 24/7 propaganda. The people out here are not interested in this spurious investigation. What they are interested in is the economy, jobs, and prices.
    This junk has gone on long enough.

  23. DrDaveT says:

    @Tyrell: So, which of the usual suspects has chosen to pretend to be Tyrell this time?

    The real Tyrell is much less coherent in his gullibility.

  24. HarvardLaw92 says:

    @CSK:

    The tweets fall under the definition of federal records. As such, they have to be maintained, in their entirety. There can be no deleted tweets for Trump.

  25. HarvardLaw92 says:

    @SenyorDave:

    I’m still not 100% convinced that he won’t be indicted while still in office, but I’m willing to bet a substantial sum that he’ll definitely be indicted once he’s out of office. State and federal.

    The flip side to the doctrine of presidential immunity from indictment while in office is that it also, by necessity, IMO tolls all applicable SOLs if invoked. Note that doctrine, which is nothing more than an untested position memo from DOJ, carries zero weight with respect to any decision made by a state AG to indict a sitting president at the state court level.

  26. Matt says:

    @Tyrell: What experience do you have in building a federal case against a large criminal organization?

    @Kathy: Indeed I was going to make a comment about how law and order isn’t a documentary…

  27. James Pearce says:

    @CSK:

    He thinks they’re inconsequential, so we all should, despite the fact that they’re official statements by the president.

    Well, you’re close. I don’t think I’ve ever say they’re “inconsequential.” They appear to be very consequential, despite not having the force of law, despite being character-limited messages on a website posted by what appears to be a deranged man. They are, as I am constantly reminded, OFFICIAL communiques from the president of the United States.

    No, they are pathetic chirps from a goofball. Oh, he’s also president of the United States? That makes me very sad. But what part of the constitution says I must imbue the pathetic messages posted on a website by our unprofessional president with anything other than derision and scorn?

    You should join me, not to think like I do, but to reduce the power of Trump’s twitter feed, which is given to him –again– not by law but by public acquiescence.

  28. CSK says:

    @James Pearce:

    James, the fact that Trump’s Tweets are worthy of “derision and scorn” doesn’t alter the fact that they’re still official statements of the president. They’re going to be taken seriously whether you like it or not.

    I deride Trump’s statements. I scorn Trump’s statements. I don’t ignore the fact that however deplorable they may be, they have to be taken seriously.

  29. James Pearce says:

    @CSK:

    They’re going to be taken seriously whether you like it or not.

    I don’t like it and I won’t participate. I’m a citizen of a constitutional republic, not the “loyal subject” of some dictator, and I am in control in my own life.

    The president can be a twitter troll if he wants. We are still a nation of laws and diktats delivered on Twitter don’t count.

    (And then there’s this. Man, it would be really awful if a big source of Trump’s “soft” power just kind of, you know, dried up.)