As former U.S. Abassador to Ukraine Marie Yovanovitch testified on Friday, President Trump tweeted a frank and unflattering assessment of her term in office:
Shortly after the President tweeted that critique, House Intelligence Committee Chairman Adam Schiff read it to Yovanovicth.
"Notwithstanding the fact that as you testified earlier, the President implicitly threatened you in that call record, and now the president in real-time is attacking you," Schiff said. "What effect do you think that has on other witnesses’ willingness to come forward and expose wrongdoing?"
"Well, it’s very intimidating," answered Yovanovitch.
"Designed to intimidate, is it not?" Schiff followed up.
"I mean, I can’t speak to what the President is trying to do, but I think the effect is to be intimidating," Yovanovitch said.
"Well, I want to let you know, Ambassador," Schiff responded, "that some of us here take witness intimidation very, very seriously."
Witness intimidation is indeed a very serious crime. President Trump, however, didn't commit it.
The relevant statute, U.S. Code § 1512(b) provides that "whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to...influence, delay, or prevent the testimony of any person in an official proceeding" or "cause or induce any person to...withhold testimony, or withhold a record, document, or other object, from an official proceeding...shall be fined under this title or imprisoned not more than 20 years, or both."
The elements of the crime are thus: 1. Knowingly intimidating or threaten a witness 2. with the intent of influencing preventing their testimony.
President Trump's tweet did not intimidate or threaten Yovanovitch in any way. It merely negatively assessed her job performance.
"Everywhere Marie Yovanovitch went turned bad," Trump said. "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."
The second sentence is a factual recounting of Ukrainian President Volodymyr Zelensky's assessment of Yovanovitch, while the first was an honest opinion of her performance in Somalia. Were either threatening or intimidating in any way? The President then followed that up with a reminder that he fired Yovanovitch because, well, he can:
"It is a U.S. President’s absolute right to appoint ambassadors.....They call it 'serving at the pleasure of the President.'"
In a follow-up tweet, the President shifted focus away from Yovanovitch personally to Ukraine policy more generally:
"The U.S. now has a very strong and powerful foreign policy, much different than proceeding [sic] administrations," he said. "It is called, quite simply, America First! With all of that, however, I have done FAR more for Ukraine than O."
Does any reasonable interpretation of either of those tweets conclude that President Trump was threatening or intimidating Yovanovitch? He expressed his displeasure with her and reiterated that he fired her because of her supposed incompetence, but he makes no threat or attempt to intimidate her in any way.
The timing of the tweet--in the middle of her testimony--has been interpreted as an effort to remind her that he (the most powerful man in the world) is watching, but this is rather ludicrous considering the fact that she would have never seen the tweet while testifying had Schiff not read it to her. Given that Trump could not possibly have known that Schiff would actually interrupt the hearing to read his tweet to a witness and that the obvious presumption is that a witness would not be checking her Twitter feed while testifying before Congress, it would have been impossible for Trump to form the requisite intent to influence her testimony.
In addition, since the content of the two tweets does not include anything inherently threatening or intimidating, it is obvious that the President did not tamper with Yovanovitch's testimony.
The Dan O'Donnell Show covered this extensively on Monday's show. Click on the player below to listen and be sure to click here to subscribe so you don't miss a single podcast!