Jurisprudence

Add Witness Intimidation to the List of Potential Jan. 6 Charges Against Trump

Hutchinson looking down with her eyes closed.
Cassidy Hutchinson, a top aide to former White House Chief of Staff Mark Meadows, arrives to testify during the sixth hearing by the House Select Committee to Investigate the January 6th Attack on the US Capitol, in the Cannon House Office Building in Washington, DC, on June 28, 2022. Photo by Stefani Reynolds / AFP

It might look like there are two unrelated storylines unspooling in the wake of Cassidy Hutchinson’s devastating testimony at the January 6th committee’s sixth hearing of the summer on June 28. The first is the claim being advanced by allies of Donald Trump that she is lying when she says she was told of his angry conduct in his limousine when he could not go to the insurrection. The second is the question of whether she was the victim of witness intimidation because of veiled pre-hearing messages that she received from Trump’s orbit.

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In fact, they are the same story. The right-wing attacks on her testimony appear to be unfounded— which would make them the post-hearing continuation of the intimidation that may have taken place before she testified. DOJ must investigate under the federal witness intimidation statute, 18 USC 1512(b).

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Initially, the post-hearing debate centered on a conversation Hutchinson testified she had with Deputy Chief of Staff Tony Ornato on January 6. According to Hutchinson, Ornato informed her that Trump was “irate” to the point of physical aggression when Trump was told he could not be taken to meet his mob at the Capitol. She recalled Ornato saying that Trump even attempted to grab the steering wheel of his presidential SUV while lunging at the head of his protective detail, Bobby Engel, with his free hand.

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After Hutchinson’s testimony, reports circulated that “sources close to the Secret Service” said that agents who witnessed the incident are prepared to challenge the claim that Trump “grabbed the steering wheel or assaulted an agent.” This initial seed of anonymous doubt was soon fertilized by further anonymous reports that Ornato and Engel, the former of whom was present for the SUV episode and both of whom were at the subsequent conversation with Hutchinson, were ready to testify under oath that Hutchinson’s version was incorrect.

Even without the evidence of witness intimidation to which we will shortly turn, these off-the-record denials must be taken with a boulder size grain of salt. Anonymous sources passing along purported denials by Ornato and Engel are hardly the equivalent of Hutchinson’s sworn testimony. Ornato also reportedly has a history of making dubious claims in service of Trump, including similar attacks on separate statements by other administration officials which reflected negatively on his patron who plucked him from the Secret Service and placed him in a top White House political job.

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The plot thickened when news broke on Friday that there may be independent corroboration for the brunt of Hutchinson’s account. Two Secret Service sources revealed that they heard from multiple agents that “Trump angrily demanded to go to the US Capitol on January 6, 2021, and berated his protective detail when he didn’t get his way.” One of the sources added that Trump “had sort of lunged forward—it was unclear from the conversations I had that he actually made physical contact, but he might have. I don’t know.”

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Let’s be clear: the lunge is just color. What matters to a possible criminal prosecution is Trump’s intent and that is shown by his undisputed desire to accompany to the Capitol a mob that, according to other key parts of Hutchinson’s testimony, he knew to be armed and had just exhorted to “fight like hell.”

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But we can’t stop there in this dispute. There’s another possible crime that needs to be investigated. The current onslaught against Hutchinson has occurred amid emerging evidence of witness tampering targeting her.

At the end of the committee’s sixth hearing, Vice Chair Liz Cheney described two examples of attempts to influence testimony. One witness described a phone call where someone reminded them that “Trump does read transcripts” but assured them they could “continue to stay in good graces in Trump World” as long as they remained “a team player.” In a second example, the witness received a call before their deposition informing them that “a person” knew they would “do the right thing” by remaining loyal. It has since been reported that both of these examples targeted Hutchinson.

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Together, those two examples create probable cause to investigate the crime of witness tampering under 18 USC 1512(b). That federal law provides that whoever employs intimidation tactics to “influence, delay, or prevent the testimony of any person in an official proceeding” faces fines and up to 20 years in prison.

A good cop/bad cop scenario looks to have unfolded. The “good cops” are those passing messages apparently attempting to shape testimony in advance. On the flip side, break away and you’re viciously attacked by known partisans like Ornato—and by Trump himself. Following Hutchinson’s explosive testimony, Trump dismissed her as a “whack job,” stating that an unspecified group of “patriots” had “said bad things about her.” He continued to direct his fire at Hutchinson over the weekend.

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Don’t underestimate how overwhelming such a campaign likely is for a 26-year-old woman who, however accomplished, is still at the start of her career professionally and in her political party.

Hutchinson’s case should sound familiar. It mirrors what Trump has done to others, most prominently Trump’s former lawyer Michael Cohen. As the Mueller Report found, Trump apparently conveyed reassuring messages before Cohen cooperated, then “turned to attacks and intimidation” once Cohen began to cooperate with the Trump-Russia investigation.

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That’s the bad cop approach. The good cop tactic was also explored by Mueller. Trump publicly praised his associates Michael Flynn and Roger Stone and eventually pardoned them after Stone was convicted of lying to protect Trump and Flynn attempted to rescind a guilty plea that was central to the Russia probe.

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That history comes into play when witnesses receive blandishments like the messages the vice chair described. The true tragedy of the Mueller report was that Trump learned from non-prosecution that he could get away with all the witness tampering he wanted.

The Department of Justice should not make the same mistake twice. It should immediately open a witness tampering investigation.

While they are at it, prosecutors may want to look at payments benefiting witnesses as well.  Hutchinson’s previous lawyer, a former Trump White House official, reportedly urged her not to speak out publicly. Committee member Rep. Zoe Lofgren put a sharp point on it: “Trump world was paying for her lawyers, which was very problematic for her. She changed lawyers and got an independent lawyer, and then proceeded.”

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Nor does it stop there. Trump’s political action committee and another entity allied with him

reportedly paid various law firms representing former officials and aides in the investigation. And the PAC also gave $1 million to a nonprofit where one important witness, Meadows, is a senior partner.

Here’s the good news. Nothing steams a federal prosecutor like the possibility of someone tampering with witnesses. There’s no system of justice once that regime is allowed to covertly enter the courtroom or the hearing room. A strong investigative response is needed here.

Some conspiracies don’t die. They have to get investigated away. It’s time to do just that, starting with the pre-hearing pressure on Hutchinson—and the post-hearing smears against her good name.

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