President Donald Trump’s Twitter feed – packed with more than 35,000 time-stamped missives dating to 2009 – offers a treasure trove of evidence for Special Counsel Robert Mueller and his growing team of investigators, according to lawyers and veterans of past White House scandals.
Like emails, handwritten notes or transcribed Oval Office conversations, the @realdonaldtrump account gives investigators a detailed timeline of Trump’s thoughts and opinions – including where they might differ from official accounts – and can also be used to establish intent, which can be critical in a criminal investigation.
Trump is not a target of the FBI or congressional probes, but his tweets could all be used by investigators as they seek to establish whether the president and his associates are being truthful in the explanations they give under oath about the nature of contacts between the Trump campaign and Russian officials. Trump’s tweets could ultimately cause problems for the people around Trump, including aides who sent messages under Trump’s account.
“They’re a gold mine,” said Peter Zeidenberg, who served on the Justice Department’s special prosecution team during the George W. Bush-era Valerie Plame Wilson investigation and now works as a partner at Arent Fox. “They help paint a picture.”
Trump’s attorneys have reportedly been trying to vet his tweets as the Russia probe gains steam, an attempt to harness the president’s uninhibited stream of political and policy punditry, biting put downs and other random asides that have upended all historic norms of White House communication.
So far, however, Trump has shown no indication he’s ready to hand over his phone. On Wednesday, the president criticized Democrats in a two–part tweet over a Fox News story suggesting they’d revoked an invitation for former campaign adviser Carter Page to testify.
In late March, Trump tweeted that his former White House national security adviser Michael Flynn “should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!”
“I think an investigator would be curious as to whether the president, who necessarily exists in a very unique bubble, was using his tweets and other public statements to communicate with, coordinate with, or direct witnesses,” said Michael Forde, a trial lawyer who represents Chicago Mayor Rahm Emanuel.
The president’s warning last month to the fired FBI director James Comey, that he’d “better hope that there are no tapes” of their conversations, “could well be interpreted as an effort to intimidate a witness,” Forde added.
Trump isn’t a stranger to seeing his Twitter feed used against him in court. U.S. District Judge Gonzalo Curiel, who was presiding over a class action lawsuit involving Trump University, ruled last November that Trump’s social media posts and other remarks critical of the judge’s record and ethnic heritage – Curiel is of Mexican descent – were fair game in a trial that ultimately was pushed aside because of a last-minute settlement.
A White House spokeswoman referred questions about Trump’s Twitter feed to the president’s personal counsel, Marc Kasowitz, who did not respond to requests for comment. A spokesman for Mueller declined comment.
Legal experts couldn’t name a single example where a president’s social media posts have been cited in a federal criminal case. Twitter was in its early adoption stages when I. Lewis “Scooter” Libby, a top George W. Bush White House aide, was convicted in 2007 for perjury, false statements and obstruction of justice over his role in the investigation of who leaked the identity of CIA agent Valerie Plame Wilson.
Staffers from President Bill Clinton’s White House often quip they were still learning how to use email and the Internet while enduring a series of federal probes that ultimately led to his impeachment.
Fast forward to 2017, and legal experts say there’s little doubt that Trump’s favored form of communication – often in all caps, and on occasion blasted in the earliest of early morning hours – can be useful fodder for federal investigators.
“There isn’t any reason why a tweet wouldn’t be treated like any other public statement. As long as it is properly attributed to the author and verified as such it would constitute a statement,” said former Watergate prosecutor Richard Ben-Veniste.
“They’re no different from emails or anything else,” added Forde.
White-collar lawyers and prosecution veterans say they have little doubt federal investigators were scouring Trump’s social media posts even before Mueller’s appointment last month.
“I’m sure they are,” said Zeidenberg. “That’s an easy one. All you need is a paralegal to pull all his tweets and post them up. It doesn’t require a subpoena.”
Legal experts say the president’s recent statements, including his admission to NBC News’ Lester Holt that he had the Russia investigation in mind before firing Comey, as well as his comment reported by the New York Times that Comey was a publicity-seeking “nut job” helps them paint a poignant picture of the president’s intentions.
“You could use those tweets to show the president was angry and frustrated by this Russia investigation, that he was furious that it was ongoing, that he didn’t think it was legitimate, that he therefore fired the FBI director to thwart it,” Zeidenberg said. “You could support that whole theory almost entirely on tweets and statements of Trump.”
Facing a barrage of media scrutiny over some of his Twitter posts, the president and some of his aides have on occasion insisted his messages shouldn’t be taken literally. That’s an argument that would face a high bar of scrutiny in a courtroom. “He can tell it to the jury and they’ll decide the credibility of that,” said William Jeffress, a white-collar defense attorney who represented Libby during the Plame investigation.
The degree of attention Trump has given to the Russia probe on Twitter, Zeidenberg said, would make it challenging for the president’s attorneys to argue he wasn’t being serious on his social media account.
“In another world you can imagine someone in his shoes saying, ‘Look, this was background noise to me. I have a government to run. I have lawyers to take care of those issues. I’m worried about what’s on my plate and other people can worry about this other stuff. I never thought it was a big problem because I knew there was nothing to it,’” he said. “That defense is foreclosed now effectively.”
The president’s social media history also gives investigators a benchmark for questioning witnesses, and where evasive or muddy testimony could expose someone to perjury or obstruction of justice charges.
Data bloggers and news media accounts over the last year have combed through Trump’s feed trying to decipher whether its Trump or his aides who are personally posting his Twitter messages, often deducing that items from an iPhone come from his staff while an Android signals its Trump himself. “Who was writing a particular tweet may well become an issue,” Jeffress said.
To legal experts, Trump’s continued use of Twitter for commentary that diverts from his daily presidential duties – and into issues that are subject to a criminal investigation — is a clear no-no that runs counter to what any defense attorney would tell him.
“Most people in this executive position would realize and take the advice of counsel,” said Zeidenberg. “Which is you’ve got to shut up about this and quit commenting.”