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Trump engaged in witness retaliation. That's a crime

Opinion by Elie Honig

Updated: Thu, 13 Feb 2020 02:11:47 GMT

Source: CNN

Editor's Note: In this weekly column "Cross Exam," Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers' questions on "CNN Newsroom with Ana Cabrera" at 5:40 p.m. ET Sundays.

In the aftermath of his recent acquittal in the Senate impeachment trial, President Donald Trump is on the payback warpath. His actions range from the disgraceful use of the Justice Department (with an eager assist from Attorney General William Barr) as a blunt instrument to protect his political allies and to target his perceived opponents to the obvious witness retaliation against Lt. Col. Alexander Vindman, a former top Ukraine expert on the National Security Council, who served as a key impeachment witness, and his twin brother, Lt. Col. Yevgeny Vindman (a National Security Council attorney who did not testify).

Yet there remains a dangerous tendency in some quarters to soft-pedal Trump's conduct. For example, in a Washington Post op-ed, "Paranoid or Presidential: Perhaps Both, but Trump Broke No Laws When He Ousted Vindman," Professor Jonathan Turley takes issue with my assertion (which has been echoed by other former federal prosecutors) that Trump committed criminal witness retaliation when he removed the Vindman brothers from their White House positions. (National security adviser Robert O'Brien denied that these firings were an act of retaliation.)

Turley is wrong. His view of unfettered, unaccountable presidential powers defies law and common sense, and smacks of the flimsy excuse-making that has propped up Trump's abuse of the Justice Department to do his political bidding. Turley first argues that Trump's "post-trial action is not obstruction or witness tampering, and those officials are not guaranteed to retain such positions indefinitely."

Ok, but how about the actual crime we're talking about here: not necessarily obstruction or tampering (though both arguably could apply) but witness retaliation.

In his article, Turley concedes that Trump's actions were wrong and "that they appear as retaliatory as they were unnecessary." Indeed, Trump undeniably acted in retaliation for Vindman's testimony in the House impeachment proceedings. Trump himself publicly admitted that his purpose was to retaliate, directly mentioning Vindman's testimony as a cause for the move; Vindman "reported contents of my 'perfect' calls incorrectly," said Trump. When asked if Vindman deserves disciplinary action, Trump said that the decision lies with the military. And Donald Trump Jr. outright gloated in a tweet, delighting in the vengeful nature of the removals of two decorated military veterans.

Turley also cites a string of examples of prior presidents firing advisers "for what they viewed as insubordination or opposition to their policies." But that is simply not what happened here. Even if Trump's motives behind removing Alexander Vindman were in question, riddle me this: why go after Vindman's twin brother as well? As a former mafia prosecutor, I'm tempted to call this a mob-like tactic, but even the mob has a rule against stooping so low as to take vengeance on family members.

The argument Turley makes ultimately rests on the tired premise that the President is essentially above the law and can fire officials for any reason he pleases. But while a president certainly has a broad right to fire officials, he is not entitled to do so for criminal reasons. For example, assume hypothetically that an old high school nemesis of Vindman's walked into the West Wing, dropped $10,000 cash on the Resolute Desk and declared, "President Trump, I'd like you to remove Vindman. Nail his brother too, if you don't mind." If Trump took the cash and then removed the Vindmans, would he be guilty of accepting a bribe? Of course. Just as a president cannot legally fire an official in return for a bribe (a criminal act), he also cannot fire an official with an intent to retaliate against a witness (also a crime).

No, Trump will not be indicted while in office -- the Justice Department has a longstanding policy against bringing criminal charges against a sitting president. But, as the policy itself acknowledges, a president can be charged once out of office. That decision will be up to some future attorney general. And there are bigger questions at play about Trump's accountability, and that of individuals who would try to excuse utterly inexcusable and dangerous conduct.

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