Hutchinson, a former special assistant to Trump’s chief of staff Mark Meadows as well as the president, offered explosive testimony Tuesday, filling in gaps about officials’ concerns about Trump’s speech and determination to get to Capitol Hill that day – and how the former president pushed forward on both fronts.
It is far from clear that the Justice Department is considering any criminal charges against Trump, even as its Jan. 6 probe moves ever closer to those in its orbit. One of the biggest hurdles is that most prosecutions against Trump require proof that he acted with corrupt intent, something the select committee has focused on proving in its own investigation.
Experts say Hutchinson’s testimony fleshed out a potential case against Trump by providing details about the president’s mindset around Jan. 6 and raising important questions for prosecutors to follow.
“Assuming her evidence is corroborated, I would say it adds significantly to his criminal case almost across the board because it shows a certain state of mind that would be evidence that the prosecution could put to a jury on a number of different types of offenses,” Ryan Goodman, co-director of the Reiss Center on Law and Security at New York University School of Law, told The Hill.
Michael Bromwich, a former Justice Department inspector general who also served in the office of the independent counsel on the Iran-Contra scandal, said the committee provided key evidence about the warnings Trump received on Jan. 6 and in the days leading up to it.
“What emerged during the select committee hearings has the makings of a strong, multifaceted criminal case against Trump,” Bromwich said. “This includes evidence that he knew the significant dangers posed by his armed supporters and his desire to further inflame them by personally traveling to the Capitol.”
Hutchinson said White House adviser Pat Cipollone told her days before the attack that he was concerned if Trump marched on Capitol Hill he might appear to be trying to incite riots, obstruct justice or cheat the election count .
“Make sure we don’t go up to the Capitol, Cassidy,” Hutchinson said, relaying Cipollone’s message to her that morning. “We will be accused of every crime imaginable if we make this movement happen.”
He and others in the White House counsel’s office had also raised concerns about the language used in Trump’s prepared speech for the morning of the sixth.
“In my conversations with Mr. [Eric] Herschmann, had conveyed that we would be foolish to include language that had been included at the request of the President,” he said, which would repeatedly use the word “struggle” and call for a march on Capitol Hill.
“Both Mr. Herschmann and the White House counsel’s office urged speechwriters not to include that language for legal reasons, but also for the perspective of what it might portray the president wanting to do that day.” .
Hutchinson also revealed that Trump knew many in the crowd that day were armed, but apparently wasn’t concerned and encouraged them to march on the Capitol anyway.
He said Trump asked security to remove the magnetometers, or mags for short, because they were interfering with the size of his crowd, even though White House officials knew as early as 10 a.m. on Jan. 6 that Trump supporters had knives, weapons. , bear spray, body armor and spears attached to ends of flagpoles.
“They’re not here to hurt me,” Trump said, according to Hutchinson’s testimony.
“Take the inflating mages. Let my people in. They can march on the Capitol from here. Let people in. Take the magic away,” he said, echoing Trump’s comments.
Kathryn Ross, a professor of constitutional law at George Washington University Law School, called it “an astonishing statement.”
That means “they’re here to hurt somebody else and that’s fine with me,” he said.
“This is also about whether he can be charged with incitement, because one of the things the government would have to show to prosecute incitement is an understanding that violence is likely to follow immediately,” Ross said.
“So when you have a bunch of people carrying weapons and wearing armor, that’s a pretty good indicator.”
Many say full disclosure is the key.
“What Hutchinson’s testimony brought into sharp relief was not only Trump’s awareness of the mob’s threat of physical violence and the associated criminal liability before his speech, but also his willingness to let the mob arm themselves and encourage them to march. with him on Capitol Hill,” national security expert Bradley Moss told The Hill.
“This really filled in gaps in relation to the intent and overt act necessary for potential conspiracy charges. Our prisons are full of people convicted of conspiracy crimes for doing less.”
Goodman says it’s important, even though Trump ultimately never made the trip, blocked by Secret Service officials who deemed the unscheduled move too dangerous amid police radio traffic that Capitol security had been breached.
“Even though he doesn’t end up going, he certainly tells the crowd he’s going. So they’re led to believe that he’s with them, and that’s actually what the White House seems to be worried about, which is that he would strongly encourage them in such a way that things are dangerous. And it would strongly encourage them in a way that would appear to be an attempt to obstruct Congress,” Goodman said.
“I think his speech itself doesn’t help him at all and if anything it adds an extra point of incriminating data.”
Goodman said the episode also raises other potential charges against Trump, including an “aiding and abetting any other federal crimes” statute.
“All we have to think about is any of the rioters who were armed or used weapons in the attack on the capital, the evidence presented in the most recent hearing directly implicates Trump in aiding and abetting,” he said.
The committee’s public hearings have also raised new questions that could help guide law enforcement and congressional investigators. The committee subpoenaed Cipollone after Hutchinson’s testimony revealed that he had issued dire warnings about the legal risks of Trump’s involvement on Jan. 6.
Lawmakers hope Cipollone could provide information that could shed light on how much involvement or foreknowledge the White House had about the Capitol attack.
But even if he continues to resist calls for public testimony — the DOJ may be able to secure his cooperation.
Hutchinson also revealed that Trump directed Meadows to contact Michael Flynn and Roger Stone on Jan. 5 as the two were organizing the president’s supporters, but it’s unclear exactly what was discussed. Both reportedly have ties to the Proud Boys and the Oath Keepers, right-wing groups whose leaders separately face charges of rioting and conspiracy related to the January 6 attack.
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Her accounts of how Meadows and Cipollone responded to the growing threat to Capitol Hill underscored how important both White House aides would be to prosecutors who might seek to build a case against Trump.
Daniel Zelenko, a former federal prosecutor, said the panel was strategic in addressing some of the questions that must be answered before the Justice Department decides whether or not to prosecute the former president. But he says the department can’t make a charging decision without seeing all of the committee’s evidence or trying to impeach key figures like Cipollone and Meadows.
“I think the commission was very effective in making a case from start to finish about the objects of a possible conspiracy to overturn an election and then the steps taken to achieve that goal,” Zelenko said. “The panel has done a really impressive job of lining up effective witnesses who are considered credible jurors, even though they haven’t been cross-examined. I think they’re not done and there are more senior White House officials who haven’t agreed to testify.”
