WASHINGTON ― Former president Donald Trump and his associates could be criminally interfering with the House Jan. 6 committee, according to legal experts.
Rep. Liz Cheney (R-Wyo.) suggested at a hearing Tuesday that some witnesses have not testified as “fully and forthrightly” as others because of interference from Trump’s inner circle, citing two statements from witnesses.
“What they said to me is, ‘As long as I continue to be a team player, they know that I’m on the team, I’m doing the right thing, I’m protecting who I need to protect, you know, I’ll continue to stay in good graces in Trump World,’” a witness told the committee.
The messages could constitute obstruction of justice or tampering with a witness in an official proceeding. Kevin O’Brien, a former federal prosecutor, told HuffPost it would be illegal to try to affect witness testimony as the Jan. 6 committee investigates the Capitol riot.
“Anything that would deflect from that course, if undertaken intentionally, is probably a crime,” said O’Brien, now a partner at white collar law firm, Ford O’Brien Landy LLP.
Cheney stopped short of alleging a crime had been committed, instead saying that in the course of its interviews the committee had become aware of “a particular practice that raised significant concern.”
The relevant part of the federal law against witness tampering calls for up to 20 years in prison for anyone who “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.”
The statute also says it doesn’t count as witness tampering if “the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.”
The Justice Department has been investigating possible crimes by Trump associates, but Attorney General Merrick Garland has been coy about the department’s plans. Federal agents recently seized materials from Jeffrey Clark, a former deputy attorney general who was loyal to Trump, and John Eastman, an attorney who advised Trump on how to steal the election. It’s up to Garland, not a House committee, whether someone gets prosecuted.
The bulk of Tuesday’s hearing showcased shocking testimony from former White House aide Cassidy Hutchinson, who testified that Trump knew some of his supporters who came to Washington on Jan. 6, 2021 were armed and dangerous, that Trump had wanted to accompany them to the Capitol, and that Trump wasn’t remotely upset as they mobbed the building.
“I don’t f**ing care that they have weapons. They’re not here to hurt me,” Trump said, according to Hutchinson.
The two statements to witnesses that Cheney shared on Tuesday did not include explicit threats.
″[A person] let me know you have your deposition tomorrow,“ someone close to Trump wrote in a partially redacted message to a witness. “He wants me to let you know he’s thinking about you. He knows you’re loyal and you’re going to do the right thing when you go in for your deposition.”
But even without a threat, if the message is coming from Trump or a close associate, a witness would probably remember that people whom Trump has singled out for disloyalty have been harassed and threatened by his supporters.
“If I know that, then I might really be afraid that if Trump is upset with me for not testifying the way that he perceives that I should testify, then not only am I likely to have some consequences to my employment, but there could be consequences to my safety or the safety of my family,” Tamara Lave, a law professor at the University of Miami, said in an interview.
Norm Eisen, a former White House Counsel under President Barack Obama, said on Twitter the messages the committee revealed “will certainly lead to criminal investigation” and maybe prosecution for witness tampering. Harry Litman, a former prosecutor, tweeted that the messages were “a layup of an obstruction felony count.”
O’Brien also said an investigation would be likely. “They will look into this and pursue it because it goes to the heart of what the Justice Department does,” he said. “It can’t bring cases properly if witnesses are allowed to be intimidated or corruptly persuaded.”
It wouldn’t be the first time prosecutors looked at Trump’s treatment of witnesses. During a special counsel investigation of Trump’s effort to obstruct an investigation into his 2016 campaign, Trump undertook “efforts in both public and private to encourage witnesses not to cooperate with the investigation,” Special Counsel Robert Mueller wrote in his final report. Those efforts included dangling the prospect of federal pardons in front of witnesses. Mueller concluded that he couldn’t clear Trump of having obstructed justice.
“I think most Americans know that attempting to influence witnesses to testify untruthfully presents very serious concerns,” Cheney said at the hearing. “We will be discussing these issues as a committee, carefully considering our next steps.”