WASHINGTON — Among the shocking revelations from the Jan. 6 committee hearing Tuesday that featured vivid descriptions of an irate and cavalier Donald Trump was one detail at the end that could spell the most immediate legal concern for the former president and his associates — the possibility of witness intimidation.
After the explosive testimony from former White House aide Cassidy Hutchinson, the vice chair of the committee investigating the insurrection, Representative Liz Cheney, had one more surprise: samples of the outreach some witnesses received from Trump associates, messages that not-so-subtly encouraged those contacted to remain “loyal.”
Cheney brought up the messages after noting how difficult it was for Hutchinson, a young aide who was only two years out of college when working for Trump, to come forward and speak publicly under oath about that day.
“What Ms. Hutchinson has done today is not easy,” the Wyoming Republican said. “The easy course is to hide from the spotlight, to refuse to come forward, to attempt to downplay or deny what happened. That brings me to a different topic.”
While many witnesses have cooperated fully, Cheney noted that not everyone had, pointing to outreach from Trump associates as a pattern of “significant concern.”
Declining to name who received the messages or sent them, Cheney mentioned the account of one witness who received multiple phone calls from “people” about that person’s upcoming testimony.
“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,” the witness told the committee, according to a transcript displayed on screen and read aloud during the hearing. “And they have reminded me a couple of times that Trump does read transcripts and just to keep that in mind as I proceeded through my depositions and interviews with the committee.”
In another example, Cheney said that another witness described a particular phone call.
“[A person] let me know you have your deposition tomorrow,” that second witness said the caller relayed. “He wants me to let you know that 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.”
Cheney did not say what the committee, which does not have prosecutorial powers, intends to do with the information. “I think most Americans know that attempting to influence witnesses to testify untruthfully presents very serious concerns,” she said. “We will be discussing these issues as a committee and carefully considering our next steps.”
But veteran prosecutors say witness intimidation is a serious crime punishable with jail time, and it can often be much easier to prove than a sprawling conspiracy or a novel line of attack in a criminal prosecution over the insurrection itself. That could be attractive to the Justice Department, which has launched a probe into the scheme to submit fake electors to overturn the 2020 election results.
“Sometimes defendants or subjects do you a big favor by doing something like lying to you or interfering with a witness because it may be that you never would have been able to put the whole thing together, but boy here’s a gift-wrapped present with a bow,” said Barbara McQuade, a former US attorney in Michigan under President Barack Obama who is now a professor at the University of Michigan Law School. “It could be a very tidy little charge if they can prove who sent that message.”
It remains unclear if the committee will refer the matter to the Justice Department for prosecution, as intimidating congressional witnesses or obstructing the investigation would be a crime. The committee may also be simply sending a message to the offenders in the hopes that the outreach will stop.
For Trump himself to be legally liable for the crime, a prosecutor would have to convince a jury that the idea and intent to discourage the witness originated with the former president, if he is indeed the person referred to in the second message. The lower-level associate who allegedly delivered the message could be motivated to talk with prosecutors to avoid being charged, McQuade said.
“It is also often a prosecution’s way of working up the chain of criminal conduct,” she said. “My guess is they knew when they read them yesterday the author would recognize them and say, ‘Uh oh, that’s me, I might be in some trouble here, I need to either knock it off or maybe I should go in and . . . I’ll sing.’ ”
But just because the charge may be more straightforward than others involving the insurrection, that doesn’t mean it’s a slam dunk to prove.
“I do think the public underestimates how difficult it is to prove something like lying to Congress . . . because you still have to prove someone’s state of mind,” said Renato Mariotti, a former federal prosecutor and legal commentator based in Chicago. He noted that any prosecutor would have to prove the person reaching out wanted witnesses to either not testify, omit some relevant information, or even falsify testimony.
“Obviously witness tampering is a crime, but the question is going to be whether or not the person who sent these communications had a corrupt intent,” Mariotti said. “On their face, they look very bad, but they’re not explicit and they give some wiggle room to a defense to argue that they believed that there was a partisan investigation and that they were just urging her to make sure that she stuck to Republican talking points.”
Both Mariotti and McQuade also noted those actions could be used in court to demonstrate “consciousness of guilt,” meaning that Trump or his associates knew they did something inappropriate and sought to cover it up.
Former prosecutor and white collar crime expert Robert Mintz hopes that if nothing else, the public understands how serious the allegations are and how much personal risk the witnesses who testify publicly are taking on.
“I was an organized crime prosecutor and one of the hallmarks of organized crime cases was attempting to intimidate witnesses from showing up in court and testifying in trials,” Mintz said. “The idea that there would be this heavy-handed contact with witnesses with these hearings should be something that most people should find shocking and entirely inappropriate.”