Witness Tampering In The Age Of Social Media

Witness tampering has been central to several significant political and legal scandals throughout US history. Defined as the act of attempting to improperly influence, intimidate, or impede a witness’s testimony or cooperation in legal proceedings, the consequences of witness tampering can be severe, leading to prison sentences and significant fines.

First – let’s start with some background definitions. Witness tampering is attempting to improperly influence, intimidate, or impede a witness’s testimony or cooperation in criminal proceedings codified in US Federal law at 18 USC § 1512, with every state carrying corresponding laws on the books. In short, the law says you are guilty of the crime of witness tampering if you:

1. Kill or attempt to kill another person with the intent to prevent their testimony.
2. Use intimidation, threats, or corrupt persuasion, to hinder, delay, or prevent testimony.
3. Engage in misleading conduct toward another person with the intent to hinder, delay, or prevent testimony.

Witness tampering is so bad, not merely for the act itself, but the effect that allowing this behavior would have on our entire judicial system. The Pennsylvania Benchbook for Judges (Third Edition) has a particularly poignant quote from Judge Renee Cardwell Hughes, who wrote:

“Justice requires a search for truth in an environment that respects the rights of all parties to the system. Truth cannot be spoken in fear. Witness intimidation strikes at the very heart of our system of criminal justice, crippling our ability to function fairly, decently and with integrity… It is the responsibility of the court to create an environment in which truth can be spoken.”

The potential penalties for witness tampering and other penalties associated with the act are correspondingly harsh. At the top end of the spectrum, killing or trying to a witness can result in life in prison or the death penalty. Using physical force or threats can result in up to thirty years behind bars, and persuasion or misleading conduct can result in a maximum of 20 years in prison. Witness tampering laws apply to more than just the defendant. These laws apply to defendants, attorneys, friends, and family members of anyone with a vested interest in the outcome of a case.

A couple of significant examples include Whitey Bulger, accused in 2013 of murdering people to prevent them from testifying against him, and, of course, former President Nixon. During the Watergate scandal, Nixon was accused of paying “hush money” to the burglars who broke into the Watergate Hotel and of obstructing the FBI’s investigation using the CIA.

With the rise of social media, witness tampering has evolved. Public figures, including at least one former US President, have used social media to message followers. Social media posts can quickly become a self-evident means to intimidate witnesses.

The Roger Stone case is a clear example. Stone was charged and ultimately convicted of witness tampering based at least partly on the public statements he made through social media during Special Counsel Mueller’s 2016 investigation resulting in a forty-month jail sentence. While Trump ultimately pardoned Stone, and he did not serve the sentence, it is nevertheless a reminder of the severe consequences social media posts can have in the context of witness tampering.

Since then, former President Trump’s tweets, or their equivalent, called a “Truth” on the social media platform Trump co-owns called Truth Social, have been scrutinized. In a 2018 tweet, he praised Roger Stone for not cooperating with prosecutors and called for a “full and complete sentence” for his former attorney Michael Cohen, who was cooperating, and may have crossed the line for witness tampering. More recently, Trump posted a “truth” on Truth Social that stated, “If you go after me, I’m coming after you!” Prosecutors at the time of this article were seeking a protective order as a result of this tweet.

From Nixon to Stone to Trump, regardless of one’s position or power, attempting to manipulate the course of justice through fear is a clear and present danger to a vital part of our democratic system. Social media is a massive temptation to public figures who now must be incredibly mindful of the effect their words can have and the grave potential for missteps.

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