The gripping testimony of Cassidy Hutchinson before the Jan. 6 committee could provide federal prosecutors with the legal ammunition to charge former US president Donald Trump with seditious conspiracy, some legal analysts say.
The ex-aide to former White House chief of staff Mark Meadows made a series of startling claims at the House committee’s abruptly called hearing on Tuesday — the most potentially damaging of which was that Trump knew people gathering near the Capitol early on Jan. 6, 2021, had weapons.
But he told officials to let them into a rally, still armed, after which they’d “march to the Capitol,” Hutchinson said.
“The thing that really struck me was how directly it tied Trump to the violence, the assault on the Capitol itself,” said Randall Eliason, the former assistant US attorney for the District of Columbia.
“Pretty compelling, pretty damaging for Trump.”
Only the Justice Department, which has been conducting its own investigation, can lay charges, but the House panel can send the department criminal referrals.
Prior hearings have focused on Trump’s non-violent efforts to overturn the election, whether by pressuring state officials or Vice President Mike Pence. But Hutchinson’s testimony “was really the strongest evidence we had directly tying Trump into the mob violence in the Capitol,” Eliason said.
‘They’re not here to hurt me’
Hutchinson quoted Trump as directing his staff, in profane terms, to take away the metal detectors, known as magnetometers or mags, that he thought would slow down supporters who’d gathered in Washington.
“‘They’re not here to hurt me. Take the f-in’ mags away. Let my people in. They can march to the Capitol from here,” Hutchinson quoted Trump as saying.
Stuart Gerson, who was acting US attorney general during the early Clinton administration, says that’s significant.
“Arguably to a jury you can say — with an evidentiary reason for saying it — that he joined the conspiracy,” Gerson said.
Previously, Trump’s role in trying to prevent Congress from certifying the 2020 presidential election has led to speculation that he could face charges of conspiracy to defraud the United States and conspiracy to obstruct congressional proceedings.
However, Hutchinson’s testimony suggests a potential case against him for seditious conspiracy — an effort to overthrow the government by force — some analysts say. The Justice Department has laid some seditious conspiracy charges against leaders of the Proud Boys and OathKeepers for their role in the riot.
Glenn Kirschner, also a former assistant US attorney for the District of Columbia, thought Hutchinson’s evidence is “a bit of a game-changer” because Trump was told the crowd was armed and dangerous.
“I can tell you, as a career prosecutor, I would argue all day long that the reasonable inference a jury should draw from the statement: ‘Take down the metal detectors because the armed rioters are not here to hurt me’ is ‘They are here to hurt the folks up the street who are in the Capitol certifying the win of my opponent,'” Kirschner said.
‘Greater certainty’ of charge
Hutchinson’s testimony also lends support to both the conspiracy to obstruct congressional proceedings charge, and seditious conspiracy, Kirschner said.
“He’s probably bought himself a greater certainty that he will be criminally charged,” Kirschner said.
Danya Perry, a former deputy attorney general for the State of New York and former assistant United States attorney for the Southern District of New York, says she agrees Hutchinson really “moved the ball” on a potential charge of seditious conspiracy.
Hutchinson’s testimony put together one of the means by which the president was willing to try to achieve his goals — by “weaponizing this mob,” Perry said.
It’s now conceivable that there could come a time when United States vs. Donald J. Trump and others could be seen on a docket sheet for conspiracy charges, she said.
She asks, rhetorically: Were his actions “qualitatively or substantively” different from those of the Proud Boys or OathKeepers?
“I think, what we saw, they’re of a kind.”
Barbara McQuade, the former US attorney for the Eastern District of Michigan, says Hutchinson’s evidence certainly makes Trump look even more reckless than first believed.
But any obstruction, defrauding or seditious conspiracy charges would require more evidence, she says.
“But I don’t think her testimony alone established that. I think she filled in some parts of the picture. And it’s important to know the whole story,” McQuade said.
“Prosecutors are looking for evidence of intent. I heard a lot of reckless intent, but not a lot of purposeful intent,” she said.
“Before you charge a former president with charges as serious as that, I think you’re going to want more than just an inference. I think you’re going to want direct evidence that this was the plan.”
Credibility as witness
Some have questioned Hutchinson’s credibility, particularly regarding her testimony that she was told Trump fought a security official for control of the presidential SUV on Jan. 6 and demanded to be taken the Capitol as the insurrection began, despite being warned earlier that day that some of his supporters were armed.
A number of media outlets have reported that the agent driving the vehicle and another security official are willing to testify that it didn’t happen. Trump himself has also denied it.
Lawyers for Hutchinson have since released the statement saying she stands by her testimony.
Eliason says Hutchinson’s strength as a witness depends on which part of her evidence we’re talking about.
“There was definitely things she was just repeating that other people told her. But lot of it was stuff that she witnessed, conversations that she witnessed,” she said.
And, prosecutors wouldn’t just use Hutchinson’s testimony. It would be a starting point to find other witnesses.
“obviously, [some are] trying to suggest, well, if she was wrong about this story, why believe anything else she said,” Eliason said.
Her testimony about what in the SUV “was an example of something that clearly was a second-hand kind of anecdote she didn’t claim to witness personally. And the details of that are much less important than details of things that she actually happened .”