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Former President Donald Trump's alleged attempt to speak with a witness before the January 6 congressional committee has been referred to the US Department of Justice, according to Rep. Liz Cheney, the Wisconsin Republican who co-chairs the panel.
But former federal prosecutors say it will be difficult to prove that such a call constitutes illegal tampering with a witness.
"Trump is damn lucky that the witness did not answer the phone," Peter Zeidenberg, who served on the Justice Department's special prosecution team during the George W. Bush-era Valerie Plame Wilson investigation, told Insider. "That could have been a huge issue if he actually spoke with the witness. As it is, I don't think much can be done. But it's the kind of thing that scares the hell out of defense attorneys."
Cheney ended Tuesday's hearing of the January 6 committee with a bombshell revelation: "After our last hearing, President Trump tried to call a witness in our investigation — a witness you have not yet seen in these hearings. That person declined to answer or respond to President Trump's call and, instead, alerted their lawyer to the call."
That lawyer, in turn, informed the committee, "and this committee has supplied that information to the Department of Justice," Cheney said. In June, the committee also shared evidence that those in Trump's orbit were seeking to influence testimony before the panel.
Federal law prohibits using intimidation to "influence, delay, or prevent the testimony of any person in an official proceeding." A person who "intentionally harasses" a witness, and is convicted, can be subject to fines and as many as three years in prison.
"Christmas may have come early for the prosecutors," Gene Rossi, a former federal prosecutor from Northern Virginia, said of the revelation. Trump is himself a subject of both the committee and the Justice Department's investigations into January 6 — and now stands accused of seeking to directly influence testimony.
Renato Mariotti, a former prosecutor with the US Attorney's Office for the Northern District of Illinois, told Insider that Cheney was "smart to put down a marker and warn Trump not to tamper with a witness." But he said the evidence she presented is not alone enough to justify a criminal prosecution.
"A phone call that didn't happen is not, in itself, a sufficient basis for a witness tampering charge," he said.
William Jeffries, a white-collar attorney who represented former President Richard Nixon, agreed that there is not anywhere enough detail about alleged tampering to say Trump actually sought to obstruct the committee's work.
"But any criminal lawyer would advise that for the subject of the investigation to contact a witness in advance of his or her testimony is a VERY bad idea," Jeffress wrote in an email to Insider.
Jack Quinn, who served as White House counsel during the Clinton administration, agreed, saying. "It would be an understatement to say that Trump's effort to speak to a witness in this, or any related, proceeding was ill-advised: it was monumentally dumb."
"He has exposed himself yet further to criminal charges, including witness tampering and obstruction of Congress," Quinn added.
That's not to say that the phone call was necessarily legal, either, noted Joyce Vance, the former US Attorney for the Northern District of Alabama.
"The statute prohibiting witness tampering also reaches attempt," she said. "Bringing a charge would depend on how good the evidence of what Trump intended to do is."
Indeed, the US Department of Justice in its own guidance suggests it's the effort — not the end result — that could make a crime out of an unanswered phone call.
"There is no requirement that the defendants actions have the intended obstructive effect," it states, with the protection from tampering extending to both potential and actual witnesses.
Andrew McCarthy, a former federal prosecutor and writer for the conservative National Review, told Insider there "needs to be evidence of corrupt effort to influence" for the phone call to trigger a criminal prosecution. He chided the committee for floating "an insinuation of a felony without concrete details."
But Philip Allen Lacovara, a former counsel for the Watergate prosecution team, said he thinks there's more to come, referring to Cheney's comments Tuesday as a "teaser" — and noting the January 6 committee's demonstrated ability to structure its hearings in a way for maximum drama and ratings.
"Recall the first rule of short story writing: If the narrator mentions a gun on page three, someone has to get shot by page six," he said. "Cheney just mentioned the gun. Stay tuned."
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