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What is witness tampering? And could this charge apply to Trump?

A video of former president Donald Trump is played on a screen at the hearing of the House Jan. 6 select committee on Tuesday. (Demetrius Freeman/The Washington Post)
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If any criminal referrals come out of the Jan. 6 committee’s investigation, witness tampering could be a big one. For two hearings in a row, the committee has suggested that allies of former president Donald Trump — or the president himself — called witnesses, at times urging them not to testify to the committee.

In Tuesday’s hearing about extremism, Rep. Liz Cheney (R-Wyo.) said that after the previous hearing on June 28, Trump tried to call an unnamed witness (“one you haven’t seen yet,” Cheney said). The committee referred information about this call to the Justice Department.

And in the June hearing, Cheney said that one witness described receiving phone calls urging them to keep Trump in mind:

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 the good graces in Trump world … And they have reminded me a couple of times that Trump does read transcripts and just keep that in mind as I proceed through my depositions and interviews with the committee.”

She also quoted a witness describing a call they received:

[A person] let me know you have your deposition tomorrow. 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.”

“I think most Americans know that attempting to influence witnesses, to testify untruthfully, presents very serious concerns,” Cheney said in June.

But what is witness tampering, exactly?

It requires three things be present, said white-collar criminal lawyer Jack Sharman, who served as a special counsel to Congress during its investigation of President Bill Clinton.

1. That there is a proceeding going on, like a grand jury (or, in this case, a congressional hearing).

2. That there is an intent to influence witness testimony in that proceeding.

3. That the intent is wrongful, meaning the person wanted to prevent the truth getting out to avoid being accused of wrongdoing. (The statue says: “whoever knowingly uses intimidation, threatens, or corruptly persuades another person.”) “I tell people that lawyers attempt to obstruct Congress all the time,” Sharman said. “The question is whether it’s wrongfully or corruptly.”

How often is a crime like this prosecuted?

Not very often. Sharman said that the majority of witness tampering cases happen in the context of a judicial proceeding, like a grand jury. It’s rare to have these cases revolve around someone preventing testimony to Congress. (In 2019, Trump ally Roger Stone was convicted of lying to Congress and witness tampering. He was going to go to jail before President Donald Trump granted him clemency.)

That doesn’t mean these kinds of prosecutions can’t happen; it just means the Jan. 6 committee could be fighting an uphill battle if it refers such a case to the Justice Department.

The Jan. 6 committee has referred four people to the Justice Department for prosecution so far — all for contempt of Congress charges, for refusing to comply with a subpoena to testify. The Justice Department has prosecuted two: former Trump political adviser Stephen K. Bannon, who faces a trial this month; and former White House adviser Peter Navarro.

What’s Trump’s potential liability?

It’s unclear. The committee has now directly accused Trump of calling a witness. But we don’t know the identities of the witnesses who received these calls, nor what was said. And in the case of the June allegations, we don’t know whether the callers were acting at Trump’s behest.

But the seeds are there for a witness tampering charge, either against the president or the people who made the calls, said Jeffrey Jacobovitz, a prominent white-collar criminal lawyer. “To me it’s clear tampering if an upcoming witness is told the president reads the transcripts,” he said. “The person who called engaged in tampering. If Trump encouraged or asked someone to make the call, he would be criminally liable, as well.”

One of the messages the committee shared in June said that “Trump does read transcripts” — meaning, the former president will be following your testimony very closely. Jacobovitz said that alone could tie Trump directly to these allegations.

In a follow-up interview after Tuesday’s hearing, Jacobovitz said that the fact Trump called a witness at all, “is certainly intimidating.”

Sharman said Cheney’s description of Trump’s phone call to a witness was vague. But if the Justice Department did investigate, it would be looking for proof that the call was “intended to persuade the witness to lie to the committee, or hold important evidence.”

Trump has a long history of pressuring witnesses testifying about him or his business practices in one of his many legal disputes, report The Post’s Rosalind S. Helderman, Josh Dawsey and Jacqueline Alemany.

The Post and other media outlets have reported that former White House aide Cassidy Hutchinson was one of the people whom Trump world tried to influence with calls before her testimony.

If that’s true, it would be significant. Her testimony has been crucial to the Jan. 6 committee investigation. She testified four times in taped interviews and for more than two hours live on Tuesday, painting a picture of a president who wanted to stay in power at all costs, even at the risk of political violence. If there was an attempt to influence Hutchinson’s testimony that could raise the stakes for the Justice Department to investigate and prosecute.

“If you combine this call, with the contacts to Cassidy Hutchinson, the Justice Department has a good-faith basis to open an investigation,” Jacobovitz said.

The committee has also hinted at the possibility that Trump engaged in witness tampering with House Minority Leader Kevin McCarthy (R-Calif.), noting how McCarthy’s statements since the attack have changed over time to become more Trump-friendly. Committee chair Bennie G. Thompson (D-Miss.) wrote a letter to McCarthy asking, “At that meeting [on Jan. 28], or at any other time, did President Trump or his representatives discuss or suggest what you should say publicly, during the impeachment trial (if called as a witness), or in any later investigation about your conversations with him on January 6th?”

McCarthy said such conversations “never happened” but acknowledged that if they did, they would probably be illegal.