What is witness tampering and could Trump be charged?

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If criminal referrals emerge from the Jan. 6 committee investigation, witness tampering could be significant. At the end of Tuesday’s hearing, the committee shared messages they said two of their witnesses had received urging them not to testify before the committee.

Rep. Liz Cheney (R-Wyo.), the committee’s No. 2, said that after being asked if “former colleagues” contacted them prior to their testimony, one witness described receiving phone calls:

What they told me is as long as I continue to be a team player, they know I’m on the team, I do the right thing, I protect who I have to protect, you know , I’ll continue to stay in the good graces of the Trump world…And they reminded me a few times that Trump reads the transcripts and keep that in mind as I conduct 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 statement tomorrow. He wants me to let you know he’s thinking of you. He knows you are loyal and will do the right thing when you show up for your deposition.

“I think most Americans know that trying to influence witnesses, to testify falsely, presents very serious concerns,” Cheney said.

But what exactly is witness tampering?

Three things must be present, said white-collar criminal lawyer Jack Sharman, who served as a special adviser to Congress during his investigation of President Bill Clinton.

1. That there is an ongoing proceeding, such as a grand jury (or, in this case, a congressional hearing).

2. That there is an intention to influence the testimony of witnesses in this proceeding.

3. That the intention is wrong, i.e. the person wanted to prevent the truth from coming out to avoid being accused of wrongdoing. (The statue reads, “Anyone who knowingly intimidates, threatens, or corruptly persuades another person.”) “I tell people that lawyers try to obstruct Congress all the time,” Sharman said. “The question is whether it is wrongly or corruptly.”

How many times is a crime like this prosecuted?

Not very often. Sharman said the majority of witness tampering cases occur in court proceedings, such as a grand jury. Rarely do these cases revolve around someone blocking testimony in Congress. (In 2019, Trump ally Roger Stone was convicted of lying to Congress and tampering with witnesses. He was going to jail before President Donald Trump granted him clemency.)

This does not mean that these kinds of lawsuits cannot take place; it just means that the January 6 committee could fight an uphill battle if it refers such a case to the Department of Justice.

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

What is Trump’s potential liability?

It’s unclear. The committee only shared two messages it said witnesses had received from Trump allies. We don’t know the identities of the witnesses who received or sent these messages — and, more importantly, whether the senders were acting on Trump’s request. Cheney said the committee would reveal more in later hearings.

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 there is tampering if an upcoming witness is told that the president is reading the transcripts,” he said. “The person who called engaged in forgery. If Trump encouraged or asked someone to make the call, he would also be criminally liable.

One of the posts shared by the committee said “Trump is reading the transcripts” – meaning the former president will be following your testimony very closely. Jacobovitz said that alone could tie Trump directly to those allegations.

And Trump has a long history of pressuring witnesses to testify 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.

Regarding the Jan. 6 committee, The Post and other outlets reported that former White House aide Cassidy Hutchinson was one of the people the Trump world tried to sway with calls before his testimony.

If true, that would be significant. His testimony was crucial to the January 6 committee investigation. She testified four times in recorded interviews and for more than two hours live on Tuesday, painting the portrait 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, it could raise the stakes for the Justice Department to investigate and prosecute.

The committee 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 Chairman Bennie G. Thompson (D-Miss.) wrote a letter to McCarthy asking, “At this meeting [on Jan. 28]or at any other time, has President Trump or his representatives discussed or suggested what you should say publicly, during the impeachment trial (if called as a witness) or during a subsequent investigation into your conversations with him January 6th ? »

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


Washington

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