The revelation that the House January 6 committee notified the Department of Justice of an alleged attempt by former President Donald Trump to contact a witness is the latest product of the panel’s probe to involve law enforcement.
The detail, presented by Vice Chairwoman Liz Cheney, a Wyoming Republican, was perhaps the most unexpected moment of the hearing Tuesday. And for the second time, the committee’s public hearings raise the possibility of a witness tampering investigation, in a swift move to bring in the Justice Department even before the committee’s investigation concludes.
Cheney said at the panel’s hearing Tuesday that Trump attempted to contact a witness who has not yet been publicly identified and, according to Cheney, has not been featured in the committee’s presentations.
“That person declined to answer or respond to President Trump’s call, and instead alerted their lawyer to the call. Their lawyer alerted us,” Cheney said. “And this committee has supplied that information to the Department of Justice.”
A spokesman for the DC US Attorney’s Office, which is handling January 6 prosecutions, declined to comment.
After the hearing, Rep. Jamie Raskin said on CNN it’s not clear to the committee if the incident amounts to witness tampering, which is a federal crime.
“We would have to know a lot more about it,” the Maryland Democrat told CNN’s Jake Tapper. “The point is that the committee takes really seriously the ability of witnesses to come in like Cassidy Hutchinson and tell us everything they know without fear of reprisal or coercion. … There’s been a pattern of this happening. And we don’t accept it.”
Raskin added that he believes Trump’s political spheres have shown “a more sophisticated way of controlling these witnesses,” including by paying for defense attorneys.
Getting DOJ interested
With the committee sending the information to DOJ, the incident could prompt interest from department prosecutors and the FBI.
Cheney’s description on Tuesday was the first time the committee has explicitly said it provided information to the DOJ that they discovered during their probe – and is a contrast to how the committee blocked the Justice Department from accessing other information, namely transcripts of interviews, collected so far by the House.
It was not, however, the first public suggestion of witness tampering the committee has made. Previously, the committee noted two incidents where Hutchinson, a former White House aide, received messages about being loyal to Trump.
Those weren’t from Trump himself. But Trump’s personal involvement in this newly disclosed incident raises the stakes if the message was intended to impact a witness’ testimony.
Cheney didn’t disclose the substance of the Trump call, and communicating with a witness alone isn’t necessarily witness tampering. Typically, under federal law, a person communicating with a witness would have to know their approach was wrong, and that it could affect a proceeding.
In the past, Trump associates’ dealings with Congress have been fertile ground for DOJ indictments. The DOJ successfully pursued witness tampering charges before, against Roger Stone for his testimony in the House’s Russia investigation. More recently, the House’s January 6 inquiry brought two criminal contempt of Congress indictments related to testimony about Trump.
Critics of these types of charges sometimes call them “process crimes,” but legal experts often side with prosecutors pursuing witness tampering claims, because of how damaging tampering can be in investigations.
Cheney has already tried to emphasize how serious attempts to influence witnesses may be taken. “Let me say one more time: We will take any effort to influence witness testimony very seriously,” she said at the hearing Tuesday.
But the conduct she described alone doesn’t establish that the Justice Department has what it would need to bring a case, even if witness tampering is in some ways a more straightforward crime than the seditious conspiracy and obstruction cases the DOJ is pursuing against rioters related to January 6.
“The elements of witness tampering – there are not a lot of elements, did you try to influence a witness who was about to testify?” Boston College Law Professor Robert Bloom told CNN. “Proving it is another matter. Not accepting a call….[we] don’t know why he was calling. It’s not clear to me they have the proof.”’
The indication that the DOJ had been notified about Trump’s recent conduct comes as scrutiny of the aggressiveness of the Justice Department’s January 6 probe mounts. While the department has made unprecedented progress in the last year and a half in the prosecutions of hundreds of low-level rioters who breached the Capitol, only recently have details about ongoing federal criminal investigations into more high-profile figures – such as ex-DOJ official Jeffrey Clark and Trump campaign lawyers and advisers – become apparent.
Members of the committee have expressed frustration with how the department has approached investigating Trump’s inner circle, hanging back from taking overt investigative steps in the first year after the riot. And some of the members regularly tease the possibility the committee could make formal criminal referrals to the DOJ asking the department to prosecute Trump or others.
Committee says Trump deeply involved
At Tuesday’s hearing, the committee made clear that they saw both Trump’s inner circle and the former President deeply involved in every aspect of the plot to disrupt Congress’ certification of his defeat.
Yet so far, in the DOJ investigation, nearly all the charges have been levied against those on the grounds of the Capitol – keeping the criminal probe a few layers away from Trump’s White House at this time. Criminal investigations traditionally work from lower levels up, while the House select committee has taken aim squarely at Trump in each of their seven public hearings.
“Every one of these elements of the planning for January 6 is an independently serious matter,” Cheney said. “They were all ultimately focused on overturning the election and they all have one other thing in common: Donald Trump participated in each substantially and personally. He oversaw or directed the activity of those involved.”
Among the key themes put forward by the committee Tuesday was that Trump was made aware of the “crazies,” as committee witness Katrina Pierson called them in a deposition, and their potential for danger, and that he anticipated a march to the Capitol on January 6 following his rally. Trump was also told by members of his White House staff, according to depositions played by the committee, that by mid-December it was time for him to move on from his efforts to overturn his electoral loss.
The committee’s emphasis in their hearings on trying to show that Trump knew of the potential for danger and ignored advice not to try to block Congress has led several former prosecutors-turned-defense attorneys to suspect DOJ may want to investigate Trump’s actions.
The committee hearing on Tuesday also tried to connect Trump with the alleged plotting of violence itself – including efforts to obtain weapons by far-right groups ahead of the Capitol breach. Committee members said much of the extremist activity was prompted by public statements from Trump about the election.
Raskin alleged that January 6, 2021, marked the first time that a president who had lost an election “deployed a mob which included dangerous extremists who attack the constitutional system of election and the peaceful transfer of power.”
This story and headline have been updated with additional developments Tuesday.
CNN’s Alex Rogers and Evan Perez contributed to this report.