Trump’s Damn Lucky That Jan. 6 Witness Didn’t Pick Up His Call

Former President Donald Trump has an astonishing knack for avoiding criminal consequences for even his most egregious behavior. 

This time, he got an assist averting legal jeopardy from an unlikely source: the witness in the Jan. 6 Congressional investigation who didn’t answer Trump’s phone call. 

That non-pickup, revealed in a jolting surprise announcement by Rep. Liz Cheney at the last moment of a Tuesday hearing devoted to the events at the Capitol on Jan. 6, will likely help Trump avoid courtroom culpability. Lawyers told VICE News that any defense attorney would have told Trump to avoid making such a call—for fear of possibly committing the crime of witness tampering. 

Cheney said Trump’s call to the unnamed witness, who has not yet appeared in the public hearings of the Jan. 6 committee, occurred within the past two weeks. Instead of answering or responding, the witness told their lawyer about the call, Cheney said, noting the lawyer had informed the committee of it. And the committee told the Department of Justice, Cheney intoned gravely—hinting at the possibility of a crime. 

“Let me say one more time: We will take any effort to influence witness testimony very seriously,” Cheney warned. 

Yet while Cheney hinted at the possibility that Trump could have trampled on the law with this mysterious outreach, three former prosecutors who spoke to VICE News say prosecuting Trump for a single phone call that didn’t even connect with its intended recipient is pretty much out of the question. 

“It could have been a butt-dial,” said Gene Rossi, a former federal prosecutor for the Eastern District of Virginia with experience in national security matters. “Trying and failing to call someone is not a chargeable crime.”

Defense attorneys warn their clients not to call witnesses in any official proceeding for fear they could violate the prohibition against witness tampering, which generally holds that you’re not allowed to influence someone’s planned testimony with threats or persuasion. It’s unclear at this time whether Trump had a detailed understanding of the person’s involvement with the committee.

Key details are still missing that could make a big difference, according to Barbara McQuade, the former top federal prosecutor in Detroit. 

Federal prosecutors may want to investigate, she said. If they do, they’d likely have plenty of questions for the witness who got the call.  

“I’d want to know: What’s your relationship with Donald Trump? Has he ever called you before? How unusual is that?,” McQuade said. “Was the person’s cooperation with the committee well known?” 

The best piece of evidence criminal investigators could have, McQuade said, would be testimony from one of Trump’s associates about whether Trump ever expressed a desire to contact the witness and persuade them not to talk to the committee. 

Knowing Trump, it’s always possible he’ll blurt out something about that in public. But he hasn’t yet, so outsiders are left to guess about what might have happened, and other important details—such as whether Trump might have left an incriminating voicemail. 

Another important variable would be whether investigators could connect multiple calls to potential witnesses into a pattern. The call revealed on Tuesday isn’t the first time a committee witness received outreach from someone in Trumpworld. 

One of the committee’s star witnesses, Cassidy Hutchinson, received a call the day before her public testimony in June, according to Cheney. The unidentified caller told Hutchinson that a person “let me know you have your deposition tomorrow. He wants me to let you know he’s thinking about you. He knows you’re loyal. And you’re going to do the right thing when you go in for your deposition.”

Trump has called multiple witnesses over the course of the January 6 investigation, the Washington Post reported on Tuesday, citing an unnamed source familiar with the investigation. But it’s not yet clear what those calls were about. 

Yet even a series of calls might not be enough to support a criminal charge, legal experts said, until more is known about what was said on the calls and the context in which they took place. 

“The assertion that there are multiple incidents of this is interesting and would make me want to investigate,” McQuade said. 

But Cheney’s public statement on Tuesday may have been primarily a warning shot to Trump and his minions, and an attempt to get them to stop reaching out to witnesses, rather than a sign of Trump’s impending legal doom, McQuade said. 

“It may be more to deter him than anything else,” she said.

Follow Greg Walters on Twitter.