If Trump’s DOJ actually runs with these flimsy accusations, it will be a very bad sign. 

Dear Reader,

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.  

The Oversight Committee spent the past two years putting together a rebuttal to the January 6th Select Committee’s report, issued in December 2022. In many respects, the dueling doorstops read like a standard exchange of trial briefs. The Select Committee makes the case that the January 6th Capitol attack was primarily Trump’s fault. The new Oversight Committee report argues that Trump had nothing to do with it (or at least skims past his involvement) and that the Select Committee’s members and witnesses had bad political motives. Both reports cite testimony and documents, and argue inferences that favor their positions. There’s room for disagreement, though it’s not all a wash; in my view, the January 6th Committee makes the stronger, though imperfect, case. It’s all within the realm of fair political debate. Have at it. 

But the Oversight Committee report raises the stakes when it alleges that Cheney committed crimes. Trump predictably piled on with a highly unspecific 3:11 a.m. social media post claiming that Cheney “could be in a lot of trouble.”

So what “lot of trouble”-worth crimes, exactly, might we be looking at here? First, the Committee alleges that 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.” Ohhhh, “secret communications.” Somebody draft an indictment for “secretly communicating” with a witness. First off, if Cheney indeed encouraged Hutchinson to testify before a congressional investigative committee – as she plainly did – then, good. If it’s a crime to encourage witnesses to come forward and to testify – even secretly – then count me guilty a  couple thousand times over. I did this every day of my career as a prosecutor. So, too, does every cop, FBI agent, and regulatory and congressional investigator. It’s the job. 

Then there’s the part about how Cheney communicated with Hutchinson without going through her attorneys. First, it’s entirely unclear that that’s what happened, and the Committee’s report suffers from a lack of clarity on the point. And even if it did happen, at most, an attorney might face disciplinary action from a bar licensing committee. There’s nothing criminal about it. 

Then there’s the allegation from the Oversight Committee that Cheney “procur[ed] another person [Hutchinson[ to commit perjury.” The problem here is, first, there’s nothing to indicate that Hutchinson committed perjury or, second, that Cheney encouraged her to do so. The Oversight Committee report goes to pains to undermine Hutchinson’s testimony. The Committee attacks her motives and points to aspects of her testimony that were contested by other witnesses. For example, the Committee notes that Hutchinson testified that she was told by a Secret Service agent that Trump wanted to go to the Capitol and had a tantrum when he was told he couldn’t. But, the Committee writes, other witnesses testified that didn’t happen. Fine. This type of factual dispute happens in every trial and is fair game for argument by the advocates. 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.   

The Oversight Committee tries to apply lipstick to its pig by declaring solemnly that it is making a formal “criminal referral” of Cheney to the Justice Department. Big deal. You know how hard it is to make a “criminal referral” to DOJ? Just go on the Justice Department’s website, click around, and you’ll find a form you can fill out and submit with a few keystrokes. Congratulations! You’ve now made a criminal referral. (To be clear: don’t actually do this.) 

There’s a superficially symmetrical bit of tit-for-tat in the Oversight report. Just as the Select Committee ceremonially referred Trump to the Justice Department for criminal investigation, so too does the Oversight Committee refer Cheney for potential criminal charges. Both ways, this act of a formal “criminal referral” to DOJ is pure political theater, and legally meaningless. The Justice Department does not need a criminal referral from anyone to do anything. Nor does a criminal referral require DOJ to do anything. 

Of course, I won’t be making the calls on this; Trump’s soon-to-be-installed Justice Department leadership will make the call on this. In that sense, this will be an early litmus test for the incoming administration. Attorney general nominee Pam Bondi has plenty of prosecutorial experience, and she should see the lack of merit in this referral immediately. Same goes for Todd Blanche, who is in line to become deputy AG. (Blanche is a friend and former colleague at the Southern District of New York). If DOJ lets the Committee’s report slide away into the political muck from whence it came, that’s a sign the new AG is playing it straight. But if the Justice department takes this seriously and pursues the Committee’s misguided fantasy of a Cheney prosecution, then we’ll know they’re off the rails. 

Stay Informed,

Elie