The ex-White House adviser’s revelations on January 6 shattered any possible defense that Donald J. Trump was merely expressing well-founded views on voter fraud.
Posted June 28, 2022Updated June 29, 2022 4:26 PM ET
It was one of the most dramatic moments in a presentation filled with them: just before President Donald J. Trump took to the stage near the White House last year and urged his supporters to “fight like hell” and march on the Capitol , an aide said on Tuesday, he was told some of them were armed.
It was also a potentially momentous moment for any prosecution of Mr. Trump, legal experts said. Knowing his mob of supporters had the means to be violent as he urged them to march to the Capitol — and stated he wanted to go with them — could bring Mr. Trump closer to impeachment, legal experts said.
“That really moved the ball significantly, although we still have a long way to go,” said Renato Mariotti, a legal analyst and former Illinois federal prosecutor.
To what extent the expanding Justice Department criminal investigation is focused on Mr. Trump remains unclear. But the revelations in the testimony of Cassidy Hutchinson, a former White House aide, before the House Select Committee both provided fresh evidence of Mr Trump’s activities prior to the Jan. 6, 2021 attack on the Capitol and nullified any possible defense him only expressed well-founded views on voter fraud.
“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,” said Alan Rozenshtein, a former Justice Department official who works at the University of Minnesota Law school teaches. “I went from Trump, who will most likely be impeached, to him, who will most likely be impeached.”
A spokesman for Attorney General Merrick B. Garland declined to comment on Ms Hutchinson’s testimony – although one of Mr Garland’s predecessors intervened.
“The department is clearly looking into all of this, and this hearing definitely gave investigators a lot to chew on,” said William P. Barr, who resigned as attorney general under Mr Trump after publicly saying weeks after Election Day there was no evidence of fraud , which was widespread enough to have changed the outcome of the race.
During her testimony before the panel, Ms Hutchinson recounted a conversation she had with Pat Cipollone, the top White House counsel, on Jan. 3, 2021. Ms Hutchinson described how Mr Cipollone worriedly pulled her aside that day after learning Mr Trump was considering marching his supporters to the Capitol following his speech near the White House on January 6 – a decision that he could have met great consequences.
“We are charged with every crime imaginable,” Mr Cipollone said, according to Ms Hutchinson.
One of the crimes Mr. Cipollone was concerned about, Ms Hutchinson said, was the same one the committee accused Mr. Trump of in a court hearing this spring: obstructing a congressional process — namely, confirming the election college vote in the Capitol on March 6. January.
A federal judge in a civil lawsuit related to the work of the House Committee also this year concluded that Mr. Trump and one of his legal advisers, John Eastman, most likely committed crimes, including obstructing the work of Congress and conspiring to Defrauding the United States, through its efforts to block the certification of Electoral College results.
According to Ms Hutchinson, another possible crime that worried Mr Cipollone was incitement to riot. This misdemeanor, while simpler in theory than obstruction, requires prosecutors to meet a high threshold of proof and to prove that a defendant’s words presented an imminent threat of lawlessness or danger.
Some legal scholars have said Ms Hutchinson’s testimony is the best evidence yet that Mr Trump did in fact incite the crowd.
“Up to this point, we had seen no evidence that he knew about the violence,” said Daniel Goldman, a former federal prosecutor who served as lead counsel during Mr Trump’s first impeachment and is currently running for Congress in New York. “The testimony made it very clear that not only was he fully aware of the threat, but he also wanted armed people to march to the Capitol. He was even willing to guide her.”
This winter, a federal judge in Washington, who ruled that a group of civil lawsuits alleging Mr Trump was responsible for the Jan. 6 violence could go to trial, also hinted that the former president was killing the crowd had incited those who heard his speech.
In his ruling, Judge Amit P. Mehta noted that after months of creating “an air of suspicion and anger” by adamantly claiming the election was stolen, Mr. Trump should have known his supporters were reading his speech not just as words, but as a “call to action”.
Judge Mehta also ruled that Mr Trump could reasonably be held accountable for supporting and assisting those who attacked police officers during the Capitol attack.
After 18 months, the Justice Department’s investigation into the attack on the Capitol has resulted in more than 840 criminal cases against rioters on charges ranging from misdemeanor to seditious conspiracy.
In recent days, the investigation has accelerated with a spate of search warrants and subpoenas involving some of Mr Trump’s key allies in key swing states and at least two attorneys, Jeffrey Clark and Mr Eastman, working on separate but related works involved plans to avert his defeat in the 2020 election.
However, it remains unknown whether prosecutors are looking directly at Mr. Trump’s own involvement in undermining the election or at the inspiration of the mob that wreaked havoc in the Capitol.
Key Revelations From the Jan. 6 Hearings
While the House committee has always reserved the right to recommend impeachment against Mr Trump, it was revealed this month that the panel and the Justice Department have been at odds over the transcripts of interviews with witnesses including Ms Hutchinson and senior officials at the department he complained that by withholding up to 1,000 transcripts, the committee was hampering work on criminal cases. Read also : South Dakota Supreme Court strikes down recreational marijuana amendment – JURIST – News.
Another unknown is whether Ms Hutchinson spoke to federal prosecutors about what she saw and heard at the White House on January 6 and the days before.
The Justice Department has already charged more than 220 rioters with obstruction, which requires proof that an accused knowingly and corruptly interfered with the work of Congress.
Some legal scholars have suggested that Mr Trump could defend himself against the indictment by arguing that he had no intention of disrupting the work of Congress with any of his plans but was acting in good faith to address what he sincerely believed was fraud held the election. He was also able to claim that his January 6 speech was protected by the First Amendment.
But even those pundits who once gave credence to these defenses said they felt the new accounts unveiled on Tuesday negated the possibility that Mr. Trump could rely on them.
Throughout the month, the House Committee has argued in detail why Mr. Trump should be charged with crimes in a series of public hearings. The presentations have portrayed Mr Trump as personally involved in multiple efforts to implicate lawmakers, Justice Department officials and even Mike Pence, his own Vice President, in schemes that would have kept him in the White House.
These machinations included a conspiracy to create false lists of voters who declared Mr Trump had won the election in states actually won by Joseph R. Biden Jr. and a subsequent attempt to convince Mr Pence to use the false lists to use on January 24 6. to undermine the normal workings of the Electoral College and single-handedly declare Mr. Trump the winner.
What Tuesday’s hearing added was a cinematic depiction of Mr. Trump’s connection to the violence in the Capitol.
“This is a dramatic final piece that enriches the story,” said Daniel C. Richman, a law professor at Columbia University. “But it’s not clear that it changes the fundamental question of criminal liability.”