Briefing

How Cassidy Hutchinson's testimony put Trump in serious legal jeopardy

Do we finally have a "smoking gun"?

The House Jan. 6 committee's surprise testimony from Cassidy Hutchinson, a special assistant to former President Donald Trump and top aide to his final chief of staff, Mark Meadows, jolted Washington with shocking new details about what was going on at the White House on and before the Jan. 6 assault on the Capitol. 

Hutchinson testified under oath that Trump and his top aides knew beforehand about plans to march on the Capitol to disrupt Congress from certifying President Biden's win; that Trump knew some of his supporters were carrying weapons when he urged them to "fight like hell" at the Capitol; that he believed he was going to lead them and got irate when the Secret Service drove him back to the White House instead; and that White House lawyers and congressional Republicans desperately opposed Trump's plan to go to the Capitol on Jan. 6.

"But the big question remains: Was any of it criminal?" The Associated Press asks. And did Hutchinson's testimony make criminal charges more likely against a former president of the United States? Here's everything you need to know:

Is Trump in actual legal jeopardy now?

Yes, Hutchinson's testimony "is the smoking gun," Sol Wisenberg, a former deputy to Clinton-era special counsel Ken Starr, told The New York Times. "There isn't any question this establishes a prima facie case for his criminal culpability on seditious conspiracy charges." Hutchinson laid out "many damning facts," said Ty Cobb, Trump's lawyer during his first impeachment trial. If riling up armed supporters, sending them to the Capitol, and endorsing the lynching of Vice President Mike Pence "isn't insurrection, I don't know what is."

"I did not think this day would come," conservative commentator John Podhoretz concurs at Commentary. "But as a result of the bombshells today, there's no question now that Donald Trump is staring down the barrel of an indictment for seditious conspiracy against the government of the United States."

"There's still a lot of uncertainty about the question of criminal intent when it comes to a president, but what just happened changed my bottom line," Alan Rozenshtein, a former Justice Department official and current University of Minnesota Law School teacher, tells the Times. "I have gone from Trump is less than likely to be charged to he is more than likely to be charged."

What crimes might Trump be charged with committing?

Hutchinson testified that Trump's White House counsel, Pat Cipollone, told her that if Trump had accompanied his mob to the Capitol, "we're going to get charged with every crime imaginable." The specific crimes he imagined, Hutchison recalled, included obstruction of justice, defrauding the congressional Electoral College count, and incitement to riot.

Hutchinson's testimony also "contained credible nuggets of information that would support" charges of seditious conspiracy, former senior Justice Department lawyer David Laufman tells The Washington Post — several members of the Proud Boys and Oath Keepers are already facing that charge — and the Jan. 6 committee has hinted at possible witness tampering, also a crime. 

Each potential charge carries risks for prosecutors. "Federal law, for instance, makes it a crime to incite, organize, encourage, or promote a riot like the one that enveloped the Capitol," AP reports. "But that's a high bar for prosecutors to clear." 

Hutchinson's testimony, if repeated under oath to Justice Department investigators, may provide enough evidence that Trump knowingly promoted the Capitol attack by an armed mob, but former federal prosecutor Jimmy Gurule said a more likely option is charging Trump with conspiracy to defraud the U.S. through his expansive plans to overturn the election and to obstruct the Jan. 6 congressional proceeding. A federal judge has already said it's "more likely than not" Trump committed those two felonies.

"He was perpetuating the big lie. To what end? To remain in power and to prevent Biden from assuming the reins of the presidency," Gurule told AP. "It was fraud on the American people."

What in Hutchinson's attestation raised the legal risks for Trump?

Hutchinson's testimony "added substantial, specific evidence showing new ways that Trump was at the very center of the plot to overturn our democracy, and executed it personally in so many respects, over the fervent objections and opposition of so many of his own people," Donald Ayer, the No. 2 in the George H.W. Bush Justice Department, told Politico. "All this stuff that Trump does, there's no mistaking what he was trying to do, and there's no mistaking that it was his intent," he added. "The bottom line is the case for prosecution of Trump is getting stronger and stronger."

"I think we crossed two important thresholds" with Hutchinson's testimony, CNN senior legal analyst Elie Honig said. "One is the violence threshold, the direct link to Donald Trump that that crowd was armed. And the other is intent. Remember early on, when the big question, the big point of dispute was: Did Donald Trump know at the time what that crowd was going to do? Did he want them to remain peaceful or did he want them to go into that Capitol angry? I mean, is there really any question about that anymore?"

And Hutchinson's sworn statements make it more likely that Trump aides with more direct knowledge will be compelled to testify — voluntarily, to answer her allegations, or under force of federal grand jury subpoena, Commentary's Podhoretz writes. Because "here's the rub for Trump. He has so far been protected by Meadows and Cippolone because they have refused to testify," and now they may not have that option.

What might save Trump from prosecution?

The biggest wild card is Attorney General Merrick Garland and his team of prosecutors. Garland is "an excellent prosecutor" with good judgment, Ayers told Politico. But "departmental guidelines say don't bring a case if you don't think you can probably convict. And that's especially true if you're going to prosecute a former president."

"I can confidently say that any serious felony-level federal crime that is going to be charged here is going to require proof beyond a reasonable doubt of criminal intent," Duke University criminal law professor Samuel Buell tells AP. Trump can argue, for example, that he believed he legitimately won the election and did not believe he was committing any crimes, and even if Hutchinson's testimony disputes that, it's "still something the prosecutor has to prove," he added.

"Unlike in a potential criminal case, the Jan. 6 congressional hearings do not include cross-examination of witnesses or the high legal standard that prosecutors face," the Post notes. And the committee is fighting with the Justice Department over handing over its 1,000 or so witness transcripts to federal prosecutors.

Finally, Justice Department leaders will have to weigh "the enormous consequences of bringing criminal charges against a former President for actions he took while in office," CNN reports. The "road map" of Trump's crimes, "we have never seen anything like this in this country. Watergate pales in comparison," said former prosecutor and Sen. Doug Jones (D-Ala.). But "there's a piece of this that scares the hell out of me." 

"I am not convinced prosecuting Trump is in the best interests of the country in the long term," Cobb told CNN.

"I think the case that we're making right now is that the president knew that he had lost the election and he attempted to overcome the will of the American people," Jan. 6 committee member Rep. Adam Kinzinger (R-Ill.) told Stephen Colbert on The Late Show. "We never want to get in a position where we're just prosecuting the last administration — that's another thing you see in failed democracies — but when you try to overthrow the will of the people, and you try a coup in the United States government, you have to pay for that, period."

"It will be," Buell told AP, "one of the hardest issues that any U.S. attorney general has ever confronted."

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