Witness Intimidation

A Primer

Liz Cheney dropped a bit of a bomb at the end of yesterday’s January 6 Committee hearing when she said that a witness, who hadn’t yet been heard and who she didn’t identify, had received a call from Trump. Rather than responding to it, the witness called their (Cheney was careful to use gender neutral pronouns) lawyer, and the lawyer passed the information to the committee.

Cheney said the committee forwarded the information to the Justice Department.

That’s very interesting.

Trump, like anyone else, is permitted to pick up the phone and call friends, acquaintances and former employees. That means there has to be more than just the bare fact that a call was placed here to raise this incident to the level of something that merits referral to DOJ.

Could it be a voicemail message left for the intended recipient? Certainly the former president, who, notoriously, was so concerned that his ongoing, every-day communications could be revelatory of criminal conduct that he didn’t even use email would be more careful than that? But there’s obviously more going on here than just a missed call, and it will be interesting to learn what the evidence is and whether it might be sufficient to motivate DOJ to take on a standalone case against Trump. It would be great if there really was a tape!

The statute most often used by DOJ in witness tampering situations is 18 USC 1512. You can read the full statute here.

The most relevant part in this case is likely subsection (b):

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to—(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding; (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned by legal process; or

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings;

shall be fined under this title or imprisoned not more than 20 years, or both.

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The statute is intentionally far reaching; it contemplates all the different ways someone might try to tamper with a witness, even an effort to delay testimony, so prosecution can be had. Lots of different conduct rings the bell under this statute, everything from outright intimidation and threats to misleading conduct. And the statute lays out a number of different intentions a defendant might have while engaging in this conduct that suffice to violate the statute, including, most prominently, influencing or preventing testimony. The emphasis in bold is mine, pointing out two important elements of this statute for our purposes.

• In includes not only a completed crime of witness tampering, but also, an attempt to intimidate a witness.

• And it’s a 20 year felony—that doesn’t mean a conviction results in a sentence of that length, typically, it’s much lower under the federal sentencing guidelines formula. But it signifies that Congress considers witness tampering a serious offense and DOJ has historically treated it like one. Both Roger Stone and real estate developer and father of Jared, Charles Kushner, were prosecuted for this crime.

It’s also illegal to alter, destroy, mutilate, conceal etc., a document with the intent to keep it out of the hands of investigators. I’ve wondered if we might not see more of this at some point, in light of the boxes of documents, including classified information, found at Mar-a-Lago after Trump left the White House.

For someone whose seemingly made a career out of boasting of his ability to intimidate and control people, it would be a fitting downfall to be charged under this statute. I hope DOJ is paying attention!

More later, but I wanted to get some information on witness intimidation into your hands as quickly as possible.

We’re in this together,

Joyce