On Monday, the House Select Committee investigating the January 6th attack on the U.S. Capitol released an executive summary of its final report, which focuses primarily on former President Donald Trump’s alleged criminal efforts to overturn the 2020 election. The committee, however, also presented new evidence of criminal efforts to interfere with its investigation – on the part of some witnesses, their attorneys, and others associated with the former president. It is the kind of evidence that may have far-reaching implications including bolstering Special Counsel Jack Smith’s January 6th and Mar-a-Lago investigations. 

Among the most significant new revelations is the statement in the summary: 

“The Committee has substantial concerns regarding potential efforts to obstruct its investigation, including by certain counsel (some paid by groups connected to the former President) who may have advised clients to provide false or misleading testimony to the Committee” (emphasis added). 

A recent Washington Post report revealed how similar ties have existed in the Mar-a-Lago investigation. That includes Trump’s Super Pac paying for the lawyers for key witnesses including Walt Nauta who apparently initially lied to the FBI before confessing knowledge of Trump’s concealing classified materials. (The committee explicitly notes this connection to the Post’s reporting.)

The committee’s revelations accordingly sweep in a set of lawyers who have exposed themselves to criminal liability. The committee also identified some witnesses who appear to have followed through by lying to the committee. 

These individuals may not have any criminal exposure involving the scheme to overturn the election itself, but now have criminal exposure for their actions toward the congressional investigation as part of a coverup. Their potential criminal liability could provide leverage for Special Counsel Smith to try to flip individuals to cooperate against Trump in the January 6 investigations and, if they also have insights into Mar-a-Lago, then in that investigation as well. 

More specifically, according to the committee’s summary, one “lawyer had advised the witness that the witness could, in certain circumstances, tell the Committee that she did not recall facts when she actually did recall them.” The committee also stated:

“During a break in the Select Committee’s interview, the witness expressed concerns to her lawyer that an aspect of her testimony was not truthful. The lawyer did not advise her to clarify the specific testimony that the witness believed was not complete and accurate, and instead conveyed that, ‘They don’t know what you know, [witness]. They don’t know that you can recall some of these things. So you saying “I don’t recall” is an entirely acceptable response to this.’”

Some of the witnesses also apparently followed through in falsely declaring an inability to recall pertinent information. The executive summary states: “Certain witnesses and lawyers were unnecessarily combative, answered hundreds of questions with variants of ‘I do not recall’ in circumstances where that answer seemed unbelievable.”

The committee also provided detailed analysis of other witnesses, such as former Deputy Chief of Staff for Operations Anthony Ornato, who appeared to have lied to the committee.

It can be a federal crime for any witness to tell congressional investigators that she does not recall information, when she does in fact clearly recall. It is also a federal crime to counsel someone to commit that act. Indeed, one of the most incriminating Nixon tapes included the sounds of President Richard Nixon coaching his senior aides to lie by claiming “I don’t remember, I can’t recall.” 

BOB HALDEMAN: You can say you forgot, too, can’t you?

JOHN DEAN: Sure

PRESIDENT NIXON: That’s right.

JOHN DEAN: But you can’t — you’re — very high risk in a perjury situation.

President Nixon: That’s right. Just be damn sure you say, “I don’t —“

BOB HALDEMAN: Yeah —

PRESIDENT NIXON: “—remember, I can’t recall. I can’t give any honest — an answer to that that I can recall.” But that’s it.

BOB HALDEMAN: You have the same perjury thing on the Hill, don’t you?

JOHN DEAN: That’s right.

PRESIDENT NIXON: Oh hell, yes.

“Several top Richard Nixon White House aides went to prison in part for perjury after insisting they couldn’t recall details surrounding Watergate that later proved disingenuous.” Darren Samuelsohn recounted in an analysis in 2017 of the general topic of falsely claiming not to recall. Others who have falsely claimed a faulty memory have met similar fates.

The core federal crimes include the federal offense of making intentional false statements (18 USC 1001). That law penalizes an individual who “covers up by any trick, scheme, or device a material fact” before congressional investigators. What’s more, witness tampering of the sort described by the committee is potentially covered by federal criminal statute as well (e.g., 18 USC 1505 and 18 USC 1512). 

The federal crime applies to “whoever … corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— (1) influence, delay, or prevent the testimony of any person in an official proceeding; [or] (2) cause or induce any person to – withhold testimony … from an official proceeding.”

As for any effort to encourage a witness to lie to Congress, we have covered that issue in the past at Just Security, when it arose with allegations that Trump encouraged Michael Cohen to lie to Congress. We published a roundup of views from former federal prosecutors and defense counsel assessing the potential criminal liability.

The introduction to the committee’s executive summary concludes with a statement that “the Committee has evaluated the credibility of its witnesses and suggests that the Department of Justice further examine possible efforts to obstruct our investigation.” Indeed, Smith may have every incentive to go down that path. It could enable his investigators to learn more from these witnesses and their lawyers about what they truly know about the former president’s actions and other evidence of criminal activities.

Photo credit: (L) Members of the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol hold its last public hearing in the Canon House Office Building on December 19, 2022 (CSPAN) ; (R) Peter Dejong/ANP/AFP via Getty Images

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