The Corner

U.S.

What Counts as Witness Tampering?

The Wall Street Journal reports:

A friend of Christine Blasey Ford told FBI investigators that she felt pressured by Dr. Ford’s allies to revisit her initial statement that she knew nothing about an alleged sexual assault by a teenage Brett Kavanaugh, which she later updated to say that she believed but couldn’t corroborate Dr. Ford’s account, according to people familiar with the matter.

Leland Keyser, who Dr. Ford has said was present at the gathering where she was allegedly assaulted in the 1980s, told investigators that Monica McLean, a retired Federal Bureau of Investigation agent and a friend of Dr. Ford’s, had urged her to clarify her statement, the people said.

This may explain why Keyser ended up in the rather silly — not to mention legally convenient — position of saying that she believed Ford, but also couldn’t remember any of the incidents that she supposedly saw.

This revelation has prompted many to suggest that McLean is guilty of witness tampering. Is she? Well, maybe. But it would be a heavy lift. 18 U.S. Code § 1512 holds that one is guilty of “tampering with a witness, victim, or an informant” if one “knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person.” Moreover, this law applies to those who “influence, delay, or prevent the testimony of any person in an official proceeding.” Per § 1515(a)(1) “a proceeding before the Congress” counts as an “official proceeding.”

But the language in 18 U.S. Code § 1512 is “corruptly persuades.” Was McLean’s effort “corrupt”? That, I think, would be much harder to prove. It is not a crime to talk to a witness and try to convince them that they are wrong, or that they are failing to remember a pertinent detail. Nor is it illegal to tell them that they should “believe” what another person says, even as they catastrophically undermine the story they say they think is true. Unless Keyser came forward with evidence that she was bullied, bribed, or threatened in some way, it seems unlikely that this will lead anywhere legally. (That is in no way to say that it shouldn’t be taken as yet more evidence that Ford’s claim is extremely weak.)

Certainly, I would like somebody to ask Senator Blumenthal what he thinks of all this. Before NBC’s story blew up in its face, he was throwing around accusations of “witness tampering” with his customary reckless abandon:

Now that the shoe has been passed to the other foot, does he still think that the bar is that low?

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