Witness tampering at Jan. 6 hearing? Cheney raises prospect

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.

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 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 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.