Witness tampering hard to prove
Panel alleged at most recent hearing Trump attempted to contact upcoming witness
WASHINGTON — In the latest Jan. 6 hearing, already standing out for its notable moments, Rep. Liz Cheney saved the most startling for last.
In her closing remarks, the co-chair of the House investigating committee said the panel had learned that former President Donald Trump had recently tried to contact a witness whom “you have not yet seen in these hearings.”
The witness apparently recognized the caller ID, and did not answer the phone, instead contacting a lawyer, who then told the committee. The committee in turn referred the matter to the Justice Department.
Though much remains uncertain about the call, including its purpose and the intended recipient, the way it was described Tuesday raised the prospect that Trump or someone close to him was hoping to shape witness testimony in the ongoing congressional hearings into the Jan. 6, 2021, assault on the U.S. Capitol.
While the committee has focused largely on compiling a historical record of the attack and Trump’s role in it, Cheney’s assertions about the former president’s phone call added another layer to the inquiry.
And it was not the first time the committee has raised the possibility of witness tampering. Among its disclosures on that subject, last month the panel revealed that one witness had been contacted by someone it did not identify, reminding the person that they were perceived as “loyal” and would “do the right thing” at their deposition scheduled for the next day.
The Justice Department declined to comment on Cheney’s disclosure, and it was not clear whether prosecutors who are tracking the hearings might follow up on the outreach to witnesses.
Even so, such contact is problematic given how easy it is for prosecutors to read nefarious intent into it, and it can be illegal in instances when someone instructs a witness in any official proceeding to lie, to not cooperate or to otherwise hinder an investigation.
“From a legal perspective, I’m advising my client, ‘Don’t make a call, don’t tell someone to make a call, don’t do anything where there’s any appearance where you’re trying to influence a witness,’ ” said Michael Weinstein, a former Justice Department prosecutor and criminal defense attorney in New Jersey.
Witness tampering prosecutions are relatively rare and when pursued are hardly slam dunks, Weinstein said, with prosecutors and defense lawyers often diverging on the meaning and intent of particular language to a witness.
The federal statute even says that defendants charged with witness tampering can raise as an affirmative defense that their sole intention was to encourage or induce a witness to contact truthfully.
“It’s a very difficult case because unless someone is explicit — i.e. ‘Don’t testify. If you testify, I’m going to kill you’ — there are a lot of nuances,” Weinstein said.
Instances cited by the Jan. 6 committee would appear to involve nuance. In one, a witness said they were told that “as long as I continue to be a team player, they know I’m on the right 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 was reminded that Trump does read transcripts.
Another message described by the committee involved a witness who was contacted by a person purporting to pass along a message from someone “who 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.”
The principal statute governing witness tampering applies to federal proceedings, whether congressional, executive or judicial. A separate statute makes it a crime to intentionally obstruct a congressional proceeding.
Generally, prosecutors must establish that an official proceeding, such as a congressional hearing, was underway, that there was an intent to influence a witness’s testimony, and that the intent was designed to obscure the truth.