Cassidy Hutchinson could not be intimidated. It was revealed this week that the former assistant to then-White House chief of staff Mark Meadows is now cooperating with the Justice Department despite receiving a thinly veiled threat from an anonymous phone caller right before she testified to the House committee looking into the Jan. 6 insurrection earlier this month — a threat she shrugged off.
The caller advised her that he was aware of her upcoming testimony, which had not yet been made public, and ominously urged her to “do the right thing” when she told the committee about President Donald Trump’s actions surrounding the mob’s storming of the Capitol. The warning to Hutchinson failed to sidetrack the investigation, however. She still told the committee that Trump was aware that some of the protesters were armed but nonetheless attempted to join them at the Capitol, only to be thwarted by the intervention of Secret Service agents.
It may have been Trump’s good luck that the Jan. 6 committee witness declined his call.
This wasn’t the only such call. It turns out the former president himself tried to reach out to a potential witness, with a source telling NBC News earlier this month that he had placed a telephone call to a member of the White House support staff who was in talks with the committee.
There is little reason to wonder why Trump did it. When the once and possibly future most powerful person in the world reaches out to a low-level White House staff member with whom, according to CNN’s reporting, he’d seldom had contact even during his administration, it’s safe to conclude that he wasn’t inquiring about the person’s health or the weather.
As virtually everyone surely realizes, the only likely purpose for such a phone call was to influence the witness’s testimony in a favorable direction, perhaps with an implied reminder of the good or bad things that could follow an appearance before the committee.
To their credit, the staff member, who has remained anonymous, recognized the caller ID, declined to answer and notified their attorney — who then alerted the committee. As committee vice chair Liz Cheney explained, the incident was so troubling that it was referred to the Justice Department, presumably to begin a witness-tampering investigation.
Nonetheless, there is a lot of territory between what everyone naturally assumes — that Trump was attempting to tamper with a witness — and bringing a criminal charge, much less securing a conviction. A successful prosecution would require more information than Cheney has provided so far.
The terms of the federal witness tampering statute are strict. They apply to those who “corruptly” try to persuade someone to withhold testimony or decline to appear in an “official proceeding.” The requirement that a defendant must have “corruptly” intended to influence the witness’s testimony is necessary to protect otherwise innocent conduct, such as counseling a sick relative to stay home instead of appearing in court, or advising a client that a subpoena is probably defective.
Moreover, a witness’s own interpretation of ambiguous circumstances — “I felt intimidated” — is not conclusive unless there is additional proof of actual intent. Although intent can be inferred from the surrounding circumstances, an unanswered telephone call gives prosecutors precious little to work with despite the blatant implication that Trump was up to no good.
Attorney General Merrick Garland has been characteristically hesitant to accuse a former president of corrupt intent, so that in itself is one more hurdle in a case against Trump. The broader political environment in which Republicans are likely to oppose any such accusation only makes the effort harder.
This represents a shift for the GOP. Back in 1999, Republicans were quick to accuse a president of witness tampering. The second article of impeachment against President Bill Clinton, for obstruction of justice, included a count accusing him of making “false and misleading statements” to his aides and staffers, some of whom were “potential witnesses in a federal grand jury” proceeding. Clinton’s prevarications were repeated by the unsuspecting witnesses, “causing the grand jury to receive false and misleading information.”
Clinton always claimed that he had lied only to protect his family and spare himself the embarrassment of admitting to adultery, but the House impeachment managers insisted that it was all part of a corrupt “scheme to delay, impede, cover up and conceal the existence of evidence.” An overwhelming majority of Republicans voted in favor of the second article to impeach Clinton in the House of Representatives and convict him in the Senate (but they fell short of the two-thirds vote needed to remove him from office).
Now the political dynamic among conservatives is so opposed to inferring indirect influence over other parties that they are unwilling to extend that standard even to a football coach. The six Republican-appointed Supreme Court justices recently ruled in favor of an assistant football coach in Bremerton, Washington, who refused to stop kneeling in prayer at midfield, in violation of the school board’s policy.
The coach’s very public profession of Christianity was joined by students and spectators, some of whom swarmed the field, including members of opposing teams who accepted invitations to participate. Other students — in a diverse community that includes Muslims, Jews, Sikhs, Hindus, Baha’is and atheists — either felt pressured or excluded, fearing that they might lose playing time or college scholarship opportunities.
No matter, said the Supreme Court majority, because there had been “no evidence that students have been directly coerced to pray” with the coach, who disclaimed all intentions to pressure his students “to participate in any religious activity.” The virtual certainty that teenagers would see the public prayers as something “expected” of them, as one of the students put it in an amicus brief, was irrelevant, so long as the coach’s implicit message remained unspoken.
It may have been Trump’s good luck that the Jan. 6 committee witness declined his call. Without evidence of overt pressure, it will probably be impossible for the Justice Department to fashion a witness tampering prosecution.
But as every New York mobster knows, silent messages can be the most coercive, with the least legal accountability, so long as the godfather’s meaning is unmistakable. We may never find out what Trump planned to say to the committee witness. Perhaps he thought the caller ID would be enough to say it all.
Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”