Nobody liked Mr. Trump’s tweeting at the onset of Marie Yovanovitch’s testimony, including many Republicans. But was it witness tampering? I have abbreviated and condensed the federal witness tampering statute, 18 United States Code 1512, for easy reading.
Whoever knowingly intimidates or threatens another person or attempts to do so with intent to influence . . . the testimony of any person in an official proceeding; or causes or induces any person to withhold testimony . . . shall be fined under this title or imprisoned not more than 20 years, or both. In addition, anyone who corruptly or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. Lastly whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person testifying in an official proceeding or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.
Here’s what Mr. Trump tweeted: “Everywhere Marie Yovanovitch went turned bad. She started off in Somalia, how did that go? Then fast forward to Ukraine, where the new Ukrainian President spoke unfavorably about her in my second phone call with him. It is a U.S. President’s absolute right to appoint ambassadors.”
Putting aside the bullying, did Mr. Trump violate federal witness tampering law?
First, was there attempted intimidation with intent to influence the testimony of Yovanovitch? Not specifically and directly. The national tweet wasn’t made until after Yovanovitch started testifying, probably on the advice of counsel.
Did the tweet intend to induce Yovanovitch to withhold testimony? Clearly, not by its terms.
Did Mr. Trump’s tweet intentionally harass Yovanovitch and “thereby” dissuade her from testifying? It did intentionally harass Yovanovitch as she admitted, but it did not dissuade her.
Was the President’s national tweet an attempt to influence an official proceeding? The tweet attacked Yovanovitch’s credibility and the only purpose was to influence decision-makers. So, the answer is yes.
This is a serious crime, a felony punishable by up to 20 years in prison, but according to prevailing beliefs a sitting President cannot be indicted. But, the President can be sued for damages. Does Mr. Trump have personal civil liability for this publication?
Trump tweeted. “everywhere Marie Yovanovitch went turned bad” is provably false based on the testimony of other witnesses concerning Yovanovitch’s stellar reputation, record of achievement, serving three times as an ambassador under multiple presidents, acceptance of hardship posts, exposing herself to personal harm in combat zones and her record of multiple State Department awards. A defense that the statement was truthful is not going to sell. With that in mind, the tweet was intended to harm her in her profession or harm her reputation. That makes it defamation.
Because Yovanovitch is a public person, under New York Times v. Sullivan, Trump is not liable for libel unless he acted with malice. Malice means that a person acted despicably, and the misconduct is so vile, base or contemptible that it would be looked down on and despised by reasonable people.
Yovanovitch was applauded as she left the hearing room and I predict a Washington, D.C. jury will applaud her with a verdict against Trump for defamation by awarding substantial damages for her mental and emotional distress and punitive damages.
The purpose of punitive damages is to punish a wrongdoer and to make a public example of them by a civil fine commensurate with their net worth for the purpose of deterring others from outrageous misconduct.
Multi-millionaires know better than to publish a libel besmirching a respected person’s reputation and exposing themselves to millions of dollars in damages for willful misconduct and punitive damages, neither of which are dischargeable in bankruptcy. On this premise, Mr. Trump is an outlier.
