Witness tampering

In recent weeks, multiple major news outlets have reported that the January 6th Committee is looking to make a criminal referral against Donald Trump to the Department of Justice on various charges, which could range from obstruction of Congress, to wire fraud, to a criminal conspiracy to overthrow the election.

These leaks have rather obviously come from the committee itself. But they’ve merely been leaks, as the committee has ostensibly been trying to lay the groundwork for what’s coming. Now such talk is no longer merely coming in the form of strategic leaks. The committee’s new formal letter to Kevin McCarthy spells out pretty clearly, in our view and in the view of the Washington Post, that the committee is looking to criminally refer Trump for witness tampering.

This gets into interesting territory to say the least. Donald Trump’s underlying crimes are huge ones, like inciting a domestic terrorist attack, and an attempted treasonous overthrow of the United States government. But these kinds of charges are more difficult to prove in a court of law, precisely because they’re such big concepts. There’s a reason the Feds tend to also tack on charges for so many ancillary or procedural crimes: they may not be as egregious, but they’re a lot easier to get a conviction on.

So it’s notable that the January 6th Committee seems to be focusing on things like obstruction, wire fraud, and tampering. These are the kinds of transactional crimes that are generally documented right there on the page and are therefore an open and shut case. Maybe you can convict Trump for criminally inciting the Capitol attack and maybe you can’t, but it’s a lot easier to convict him for obstructing Congress by refusing to call off the dogs once he saw the results of his incitement. Similarly, whether or not Trump’s January 6th exchanges with McCarthy prove premeditation on Trump’s part, their subsequent exchanges do prove tampering on Trump’s part.


Given that the DOJ only likes to bring criminal indictments when it’s certain it can get a conviction at trial, it’s important for the January 6th Committee to include the kinds of slam dunk charges in its criminal referral against Donald Trump that the DOJ likes to run with. As the committee’s work moves forward, let’s keep an eye out for the specific criminal charges that it has its finger on as it builds its criminal case against Trump.

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