President-elect Trump’s fixation on former Rep. Liz Cheney (R-Wyo.) is escalating as he suggests she should be prosecuted for her work on the now-disbanded House Jan. 6 committee.
In the wake of a report by a House subcommittee that alleges Cheney improperly communicated with star witness Cassidy Hutchinson, Trump accused Cheney of committing crimes as she led the panel.
“Liz Cheney has been exposed in the Interim Report, by Congress, of the J6 Unselect Committee as having done egregious and unthinkable acts of crime,” Trump wrote on his social media site, adding that her support “helped the Democrats lose the Election.”
“She is so unpopular and disgusting, a real loser!”
It would likely be difficult for a Trump Justice Department to successfully prosecute Cheney.
Hutchinson first reached out to Cheney, and any work the former member of House GOP leadership did would likely be covered by the Constitution’s Speech or Debate Clause.
But the report is nonetheless something of a road map for a possible investigation into a top Trump critic and someone the president-elect has repeatedly said should face consequences.
The interim report is from Rep. Barry Loudermilk (R-Ga.), a House Administration subcommittee chair. Loudermilk was himself reviewed by the Jan. 6 committee after giving a Capitol tour on Jan. 5, 2021, to two constituents who later joined the rioters gathered around the building.
His report — billed as a review of the “failures and politicization” of the panel — calls for a criminal investigation into Cheney, saying she may have violated statutes regarding witness tampering by being in contact with Hutchinson.
Hutchinson initially reached out to former White House aide Alyssa Farah Griffin, whom the report accuses of being a backchannel between Hutchinson and the lawmaker.
It was Hutchinson who first reached out to Cheney, and in her memoir the lawmaker writes about encouraging her to find a new attorney as “every witness deserves an attorney who will represent their interests exclusively.”
Rep. Jamie Raskin (D-Md.), a former constitutional law professor who served on the Jan. 6 panel alongside Cheney, said the former lawmaker did not act inappropriately but would be protected regardless.
“It is not a crime in America to tell someone to testify truthfully. That’s the opposite of witness tampering and suborning perjury,” he told The Hill. “And of course Cassidy Hutchinson did testify truthfully.”
“But Liz Cheney was a member of Congress, which means that she had all of the robust protection of the Speech and Debate Clause, which insulates members in the performance of their legislative duties from prosecution and investigation outside of Congress. The legislative function, including investigation, is completely protected and, as the authors of the report obviously know, investigators routinely meet witnesses.”
Speech or Debate Clause protections are not absolute, and lawmakers can still face charges for crimes that have nothing to do with their role in Congress.
“Speech and Debate protection does not extend to activities that have nothing to do with the legislative and political process but are purely criminal in nature, like paying for sex or purchasing cocaine and ecstasy,” Raskin said, making an apparent nod to activity unveiled in an Ethics Committee report on former Rep. Matt Gaetz (R-Fla.).
But bringing a witness tampering case against Cheney would also face roadblocks regardless of her status as a lawmaker.
Loudermilk’s report argues that Cheney erred by being in touch with Hutchinson at all given that the aide initially worked with a lawyer paid through a Trump legal defense fund.
“It is unusual—and potentially unethical—for a Member of Congress conducting an investigation to contact a witness if the Member knows that the individual is represented by legal counsel,” the interim report states.
The law penalizes those who pressure witnesses to change their testimony or lie under oath, but Hutchinson agreed to testify publicly in a blockbuster hearing after saying her former attorney, Stefan Passantino, encouraged her to not be forthcoming with the panel.
Elie Honig, a former federal prosecutor and CNN legal analyst, said law enforcement, prosecutors and even congressional investigators routinely encourage witnesses to testify as a function of their job.
“Even if you take every word of the House Oversight Committee’s report on January 6 as gospel — and, please, don’t — Liz Cheney did not commit a crime. It’s not close. The suggestion to the contrary by the Republicans who ran the Committee betrays that they either have no clue about criminal law or don’t care because the politics of payback reign supreme,” he wrote in New York Magazine, adding that the report is slim when it comes to substantiating its own allegations.
“There’s nothing to indicate that Hutchinson committed perjury or that Cheney pushed her to do so … But the committee unilaterally declares its worst suspicions to be correct and then labels testimony it doesn’t like as perjury. That won’t fly in a criminal court,” he said.
While Republicans have taken issue with some of Hutchinson’s testimony, including a story about Trump lunging at his driver that day, she made clear she was relaying a story told to her by someone else.
William Jordan, a lawyer for Hutchinson, defended her testimony while calling the claims of collusion between the women “preposterous.”
“Ms. Hutchinson made the independent decision to part ways with her Trump-funded lawyer, freeing her to provide candid, truthful, and honorable testimony to the January 6th Committee about the attack on the Capitol, alongside dozens of Republican witnesses and law enforcement officers,” he said in a statement to NBC when the report was released.
“Despite baseless attacks by men with their own agendas to discredit her, Ms. Hutchinson stands by her testimony and remains committed to the truth and accountability.”
Any successful prosecution of Cheney would likely also need cooperation from Hutchinson.
But she declined to get involved in ethics complaints against Passantino after he was accused of encouraging her to say she remembered little about the day and said she would be able to get a good job in Trump World. Various bar associations declined to take action on the matter, dismissing two ethics complaints in citing a lack of sufficient evidence to move forward.
Conservative legal commentator Jonathan Turley said a similar ethics complaint before the bar would likely be the only avenue for pursuing Cheney, though he said he was “doubtful that this would rise to a formal Bar ethics investigation.”
For her part, Cheney blasted the entirety of Loudermilk’s review.
“Chairman Loudermilk’s ‘Interim Report’ intentionally disregards the truth and the Select Committee’s tremendous weight of evidence, and instead fabricates lies and defamatory allegations in an attempt to cover up what Donald Trump did. Their allegations do not reflect a review of the actual evidence, and are a malicious and cowardly assault on the truth. No reputable lawyer, legislator or judge would take this seriously,” she said.
Loudermilk called the former panel “a political weapon with a singular focus to deceive the public into blaming President Trump for the violence on January 6 and to tarnish the legacy of his first Presidency.”
Trump seemed to agree, praising the Georgia Republican for “the great work he has done in exposing the massive corruption of the J6 Unselect Committee of Political Thugs!”
He’s also previously said members of the panel “should go to jail.”
But Rep. Bennie Thompson (D-Miss.), who served as the chair of the committee, said Loudermilk “failed to discredit” the panel’s work while sidestepping Trump’s accountability.
And Raskin called the report “thin gruel.”
“It talks about everything except what actually happened on January 6. The bloody mob violence seems to have disappeared. Donald Trump’s speech of incitement on the Ellipse and provocative tweets have vanished. The plan to spread the big lie and overturn the election, which Joe Biden won by 7 million votes, has apparently been vaporized,” he said.
“This report does not lay a glove on the 845-page report of our bipartisan committee. It’s empty heckling.”
