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Could Trump's Tweets Be Used As Evidence For Obstruction Of Justice?


All right, I'm going to utter words now that I seem to find myself saying a lot. Let's talk about something President Trump tweeted, specifically a tweet from this past weekend in reference to Trump's former national security adviser, Michael Flynn. The message posted on the president's account reads, quote, "I had to fire General Flynn because he lied to the vice president and the FBI." That tweet has prompted an avalanche of questions over whether it could be used as evidence in a potential obstruction of justice case for special counsel Robert Mueller.

And to help sort through some of those questions we asked Peter Zeidenberg to stop by. He worked on the Valerie Plame investigation as part of the Justice Department's special prosecution team. Welcome.

PETER ZEIDENBERG: Good afternoon.

KELLY: What was the first thought that went through your mind when you saw that tweet this past weekend?

ZEIDENBERG: I thought, his lawyers are not going to be very happy about this. The last thing you want to do as a defense attorney is make the prosecution's case - make their job easier.

KELLY: From a legal point of view, how strong a piece of evidence is that tweet?

ZEIDENBERG: It's helpful. I don't think it's necessarily a game changer because I think frankly, if I had to guess, the special counsel has other means of establishing the fact that Donald Trump was aware that Michael Flynn had lied to the FBI. Now, that's not public record, so it may be the case that there isn't other means of establishing that. In that case it would be something that would be very helpful piece...

KELLY: And it's helpful how, just in establishing what...


KELLY: ...The president knew when?

ZEIDENBERG: You have to show that he interceded on behalf of Flynn because he had done something illegal. So if he's interceding on Flynn's behalf knowing that Flynn has committed what's alleged to be a criminal act, then it's helpful from the prosecutor's standpoint if you're trying to make an obstruction of justice case.

KELLY: The White House now says that Trump did not write this tweet. One of his lawyers, John Dowd, says he wrote it. If there is doubt about who actually sat down and typed out those words, how might that dilute its value as a piece of...


KELLY: ...Evidence in court?

ZEIDENBERG: Prosecution has means of determining who actually drafted and typed and sent that tweet. And it may mean that John Dowd is made a witness in this case. Or others could testify about who had that phone and when it was sent and who was at the White House at that time. And if it came down to this tweet and they need to know who drafted it, yes, they certainly have means of finding that out.

KELLY: So I hear you saying your view is that the president's lawyers have an uphill battle at this point. But let me let you respond to one of the points that this same lawyer John Dowd has made, the one who says he wrote the tweet. He gave an interview to Axios and argued that he doesn't think the president can obstruct justice. He said - and I'll quote - "the president cannot obstruct justice because he is the chief law enforcement officer under the Constitution."

ZEIDENBERG: I don't know any legal support for that statement. And it's - Donald Trump is president. He's not king. And he's not above the law. Other presidents have gotten into a great deal of trouble for obstruction of justice, including Bill Clinton and Richard Nixon. His attorney general, Attorney General Sessions, when he was senator made a long statement when he was in the Senate explaining how obstruction of justice by the president is an impeachable offense. I think it's going to be very hard to make that argument with a straight face that the laws do not apply to the president.

KELLY: Peter Zeidenberg. He worked on the Justice Department's special prosecution team during the Valerie Plame investigation. He's now a partner at the law firm Arent Fox. Thanks so much for stopping by.

ZEIDENBERG: Thank you. Transcript provided by NPR, Copyright NPR.