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What does Cassidy Hutchinson’s testimony mean for the investigation of the U.S. Capitol riot?

The Signal

What does Cassidy Hutchinson’s testimony mean for the investigation of the U.S. Capitol riot? Alan Rozenshtein on the January 6th committee’s new hearings and the potential prosecution of Donald Trump.
Natalie Parham
Natalie Parham
After 20 million people tuned in to its inaugural hearing earlier this month, the U.S. House of Representatives’ Select Committee to Investigate the January 6th Attack on the United States Capitol attracted waning attention in the following weeks. Television ratings dropped. The Americans political news media became preoccupied with other coverage, including of the U.S. Supreme Court’s highly consequential decision overturning Roe v. Wade, the 1973 ruling that had guaranteed a constitutional right to abortion in America. But then, this past Tuesday, the committee stunned official Washington, the U.S. media, and Americans generally with the testimony of Cassidy Hutchinson, a 26-year-old former aide to President Donald Trump’s Chief of Staff Mark Meadows—an explosive account of what she’d seen and heard in the days leading up to January 6th and during the chaos of the day, concerning what Trump and his aides knew, what they were thinking, and how they behaved. It was all unusually dramatic, even by the standards of Trump-related news. But how important is it?
Alan Rozenshtein is an associate professor of law at the University of Minnesota, a senior editor for Lawfare, and formerly an attorney at the U.S. Department of Justice. According to Rozenshtein, some of Hutchinson’s testimony—for instance, her second-hand description of an irate Trump having thrown a lunch plate, apparently with a volume of ketchup on it, against the wall—probably wouldn’t be relevant to any potential prosecution of Trump by the U.S. Justice Department. But her statements about the former president’s advanced knowledge of potential violence—and about his intentions and general state of mind on January 6th—are a different matter. In the nearer term, Rozenshtein sees them as increasing the likelihood that other Trump associates will be more cooperative with the congressional committee, as its hearings continue over the summer. In the farther term, he sees them as increasing the odds of Trump facing criminal charges from the Justice Department—another surreality of the times in a country where the former president remains the most powerful person in the Republican Party and may yet seek reelection to the White House two in two years.
Graham Vyse: What are the key points in Cassidy Hutchinson’s testimony?
Alan Rozenshtein: Her testimony was largely an account of important events on—and in the days leading up to—January 6th. She testified that the White House, including Trump and Meadows, had advanced knowledge that some of the people going to the “Stop the Steal” rally were armed with guns, knives, spears, and other weapons.
She also offered remarkable testimony about what took place on the day of the rally: Trump was very frustrated that the crowd wasn’t closer to him, because that would have looked better on TV. When he was told that people in the crowd were armed—and that they couldn’t get closer because of the “mags”—the magnetometers, otherwise known as metal detectors—according to Hutchinson, he said, “I don’t effing care that they have weapons. They’re not here to hurt me. Take the effing mags away.”
She testified to second-hand knowledge, as well—via Tony Ornato, then the deputy White House chief of staff—from after the rally, when Trump was in his armored vehicle nicknamed “the Beast.” The president wanted the Secret Service to drive him to the Capitol so he could join the crowd gathering outside the building. When the Secret Service refused, Trump tried to grab the vehicle’s steering wheel, and then lunged at a Secret Service officer, before calming down and returning to the White House.
Hutchinson described Trump’s continued unwillingness to do anything about the rioting once he got back there. She relayed a particularly powerful scene in which White House Counsel Pat Cipollone was basically begging Meadows to go with him to convince Trump to do something, noting that rioters were chanting, “Hang Mike Pence!” Meadows said that Trump thought the rioters weren’t doing anything wrong—and that Pence deserved to be hanged. The president later sent out a tweet criticizing Pence, which may have inflamed the whole situation further.
Vyse: What in Hutchinson’s testimony was new information?
Rozenshtein: This was the first time the public heard that story about Trump in the Beast, as far as I know, and she provided new testimony about the president being told about armed people in the crowd. That language about “they’re not here to hurt me” and his desire to take away the mags was most notable to me. Hutchinson also testified that she had to clean ketchup off a wall in the White House dining room after a valet told her that an “extremely angry” Trump threw his lunch plate. Of course, shattering a plate against a wall isn’t a crime.
Vyse: Not usually. So, how would you assess which parts of her testimony were relevant to any potential prosecution?
Rozenshtein: I’m not sure a judge would allow evidence about the shattered plate and the ketchup. In order for evidence to be admissible, its probative nature must outweigh its prejudicial nature. A judge can say, This evidence isn’t really that important. It just makes the guy look bad. Another category of statements would be those that are definitely relevant to a criminal investigation but may not be admissible under the rules of evidence. There are questions about how much of what she said is hearsay—second-hand information—some of which might be admissible and some of which wouldn’t be.
In the meantime, it’s implicit in your question and important to remember: A congressional hearing isn’t a criminal case. It’s a mistake to judge the success, failure, propriety, or impropriety of a hearing by criminal evidentiary standards.
The White House
The White House
More from Alan Rozenshtein at The Signal:
Her testimony is a real victory for the committee in demonstrating that its hearings aren’t simply about taking information it previously learned and packaging it in a publicly accessible way. Which ought to give the committee more confidence in its work. To the extent that it’s been pulling punches, holding things back, or wanting to feel out its credibility with the American people, I expect it now to feel more emboldened. If you’re someone in Trump’s circle who’s been resisting cooperation with the committee, testimony like Hutchinson’s increases the pressure on you to cooperate. It shows you that the committee is prepared and able to go deep in its investigation—and that you should think seriously about getting off a sinking ship.”
Evidence that goes to Trump’s knowledge about the danger of the crowd is highly relevant [to a potential criminal prosecution from the Justice Department], as is any evidence that goes to Trump’s intent. When you hear testimony that Trump said armed people in the crowd were “not here to hurt me” and urged them to go to the Capitol—and you combine that with the rest of the evidence—it’s no longer in much doubt. He was acting either with the intent to cause disruption—or even violence—to Congress or, at the very least, with the knowledge that those outcomes were foreseeable and likely.”
The hardest issue, which only Attorney General Merrick Garland can decide, is whether a prosecution would be in the public interest. It can’t be in the public interest to allow someone to be above the law, but prosecuting a former president for political acts—especially when that former president is likely to be the frontrunner for the 2024 Republican presidential primaries—would be an extremely big deal. I don’t envy Garland.”

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