WASHINGTON — Former president Donald Trump may have given the committee investigating the Jan. 6 Capitol riot — and the Justice Department — more legal ammunition against him with the revelation Tuesday that he attempted to contact a witness in the panel’s investigation.
“After our last hearing, President Trump tried to call a witness in our investigation, a witness you have not yet seen in these hearings,” Representative Liz Cheney, the committee’s vice chair, said at the end of nearly three-hour hearing that laid out in chilling detail how extremist groups prepared for violence on Jan. 6, 2021, and seemingly coordinated their efforts with the White House.
Cheney, a Wyoming Republican, gave no clues about the identity of the witness. The committee’s hearings have already featured taped and in-person testimony from former Trump administration officials, including advisers in his inner circle.
Cheney said that the unidentified witness did not answer the call and told their lawyer. The lawyer told the committee, which notified the Justice Department, she said.
“Let me say one more time: We will take any effort to influence witness testimony very seriously,” Cheney said. The Justice Department is under no obligation to follow up and witness tampering charges are difficult to prove with an unanswered phone call alone, experts said
Tuesday’s revelation followed a similar one delivered by Cheney at the end of the select committee’s last hearing, when she said that witnesses had described outreach from unnamed Trump associates with what they said were comments about their testimony and a reminder to stay loyal to Trump.
Former prosecutors said that such outreach could amount to potential witness tampering charges, serious offenses which can be much easier to prove than a sprawling conspiracy related to Jan. 6, but noted that such outreach would have to be tied back to Trump for him to implicated criminally.
Tuesday’s revelation suggests that Trump himself could be investigated. What’s more, the attempted call happened after the committee made clear they knew about the witness outreach and were serious about stopping it, a potentially brazen move on the former president’s part.
“Sometimes defendants or subjects do you a big favor by doing something like lying to you or interfering with a witness,” Barbara McQuade, a former US attorney in Michigan under Barack Obama who is now a professor at the University of Michigan Law School, told the Globe after the June hearing.
But despite witness tampering being an easier charge to prove at times, that doesn’t make it easy. The former prosecutors said prosecuting such a case requires proving there was an intent to cause a witness to falsify or omit truthful testimony.
McQuade cautioned after Tuesday’s hearing that without knowing why Trump was calling and what he would have said, an unanswered phone call alone won’t make the case. She said that the committee’s referral to the Justice Department certainly suggests that Cheney suspects tampering, but is not enough to find a crime.
“Further investigation would be needed to determine Trump’s relationship with this witness, the frequency with which they speak, and any other evidence to support that Trump had an intent to interfere with the witness’s testimony,” McQuade said.
Renato Mariotti, a former federal prosecutor and legal commentator based in Chicago, called Tuesday’s public announcement a “savvy use of her platform” by Cheney to warn Trump not to interfere.
Robert Mintz, a former prosecutor and white-collar crime expert, agreed that without knowing how the call would have transpired, there was little for prosecutors to act on. But, he said, it was still important for the committee to track and call out the former president’s actions.
“Simply the fact of the call itself presents an appearance of potential interference that should be a cause for concern,” Mintz said Tuesday.