As his former attorney Michael Cohen
once explained,
Donald Trump often doesn’t need to tell his loyalists precisely what he expects them to do. He hints at it, nudges them and expects that they understand what is intended.
In March, for example, he said that former congresswoman Liz Cheney (R-Wyoming) should “go to Jail along with the rest of the Unselect Committee” — a reference to the House select committee investigating the
Jan. 6 Capitol riot. Cheney served as vice chair of the panel.
He was responding to
a preliminary report compiled by the House Administration oversight subcommittee, which Rep. Barry Loudermilk (R-Georgia) leads. That report, a review of the Capitol riot investigation, suggested that the select committee had withheld evidence. This triggered Trump’s recommendation of criminal charges for its members.
Loudermilk is a Trump ally whose subsequent claims that the select committee had also failed to adequately preserve evidence evolved into a Trumpworld insistence that evidence had been destroyed. This has been
debunked, but Trump nonetheless referred to that idea during an interview with
NBC News this month in which he again suggested that Cheney should “go to jail.”
🏛️
Follow Politics
“They deleted and destroyed a whole year and a half worth of testimony,” he falsely claimed, referring to the select committee. “I think those people committed a major crime.”
On Tuesday, the
final report from Loudermilk’s subcommittee was made public. In it, the subcommittee does recommend criminal charges against Cheney, as Trump had repeatedly demanded. But — probably in recognition that the “destroyed evidence” claim was a canard — the recommendation centers on Cheney’s alleged “tampering” with one of the committee’s key witnesses.
The report’s conclusion summarizes the claim:
“Based on the evidence obtained by this Subcommittee, numerous federal laws were likely broken by Liz Cheney, the former Vice Chair of the January 6 Select Committee, and these violations should be investigated by the Federal Bureau of Investigation. Evidence uncovered by the Subcommittee revealed that former Congresswoman Liz Cheney tampered with at least one witness, Cassidy Hutchinson, by secretly communicating with Hutchinson without Hutchinson’s attorney’s knowledge. This secret communication with a witness is improper and likely violates 18 U.S.C. 1512. Such action is outside the due functioning of the legislative process and therefore not protected by the Speech and Debate clause.”
“The Federal Bureau of Investigation must also investigate Representative Cheney for violating 18 U.S.C. 1622, which prohibits any person from procuring another person to commit perjury.”
Trump, predictably, celebrated this determination,
paraphrasing the vaguest snippet of that allegation on social media: “Numerous federal laws were likely broken by Liz Cheney, and these violations should be investigated by the FBI.”
It’s an endorsement of a fishing expedition, a demand from Loudermilk and Trump that the FBI use this pretext to find something to pin to Cheney. But it sits alongside two actual allegations — both of them flimsy to the point of transparency.
At issue is the testimony of Hutchinson, a former aide to Trump’s last chief of staff when he previously served as president, Mark Meadows. Hutchinson, you will probably recall, offered shocking testimony at a June 28, 2022, hearing about Trump’s behavior on the day of the riot, including allegations about his dismissiveness about the threat posed by the crowd at his speech outside the White House that morning, Trump’s insistence on driving to the Capitol after the speech and how he responded to reports about the threat posed to Vice President Mike Pence.
That testimony, though, came about only after Hutchinson went through an internal struggle described in her 2023 book “Enough.” Hutchinson was a loyal Trump supporter and, as such, was provided by Trump’s team with an attorney, Stefan Passantino, when the select committee first subpoenaed her in January 2022.
She sat for two depositions with committee staffers in February and March of that year. Following Passantino’s advice, she didn’t volunteer information that would cast Trump in a negative light. But she began to have qualms about this approach, later reaching out to her former colleague Alyssa Farah for advice on how to proceed. Farah helped orchestrate a third deposition, in May 2022, during which Hutchinson was able to speak more freely. Her attorney was not pleased, and neither was Trumpworld.
In early June, Passantino recommended that Hutchinson stop complying with the committee’s efforts, including an anticipated fourth interview. In her book, she writes that she expected but “dreaded” Passantino forcing the issue, worried that she would be putting herself at risk of contempt charges. So, soon after, she contacted Cheney directly. Two months ago, Loudermilk’s subcommittee
released some information about this communication, framing it in ethical, not legal, terms.
In a phone conversation with Cheney recounted in Hutchinson’s book, Hutchinson indicated that she intended to represent herself moving forward. Cheney recommended against doing so. When Hutchinson indicated that she’d previously had trouble identifying and affording counsel, Cheney said she would consult with her colleagues and get back to her. The next day she did, offering “contact information for multiple attorneys.” Hutchinson spoke with a number of them, ultimately deciding on attorneys Jody Hunt and Bill Jordan.
Later that month, she sat for another deposition. Freed from the constraints Passantino had encouraged, she offered much more detail on what she’d seen and, more explosively, what she’d been told about Jan. 6, 2021. The select committee quickly scheduled the aforementioned public hearing for June 28. Hutchinson would sit for recorded interviews twice more in September 2022.
The report from Loudermilk’s subcommittee twists Cheney’s role into criminal activity in two ways. The first is that her interactions with Hutchinson are described as “tampering,” citing
federal witness-tampering statutes. But those are focused on
inhibiting testimony (particularly through force), not on
enabling it. What’s more, the report’s important claim that Hutchinson retained Hunt and Jordan “at the recommendation of Representative Cheney” ignores the nuances of the interactions both women describe in their respective books.
Much of Loudermilk’s report centers on discrepancies between Hutchinson’s testimony and the testimony of others, discrepancies that are often in part because (as Hutchinson always represented) her testimony included secondhand information. But because the subcommittee presents Hutchinson’s testimony as intentionally false, the second recommended charge against Cheney proposes that she intentionally orchestrated Hutchinson’s testimony so that the witness could provide that false information.
In a statement offered in response to the Loudermilk report, Cheney
wrote that “[n]o reputable lawyer, legislator or judge would take [the allegations] seriously.” And that’s probably true. But the report’s recommendation for an FBI probe will most probably be taken seriously by the incoming head of the FBI — if not Trump first choice,
fervent loyalist Kash Patel, then whoever ends up being confirmed by the Senate.
Trump sent his Capitol Hill allies an unsubtle signal: Cheney must pay, even beyond her Trump-orchestrated ouster from the House. Loudermilk and his subcommittee were no doubt cognizant of that signal when they upgraded their allegations against Cheney from ethical to legal ones. And now Trump’s incoming FBI director has a trivial predicate, in case he even sought one, to start the fishing expedition that Loudermilk and Trump endorse.
