WASHINGTON (The Hill) — The Jan. 6 committee’s accumulating evidence against former Pres. Donald Trump, including testimony from White House aide Cassidy Hutchinson, has strengthened a potential criminal case against him and chipped away at his most likely defense arguments, legal experts say.
Hutchinson, a former special assistant to Trump chief of staff Mark Meadows as well as the president, offered explosive testimony Tuesday, filling in gaps about officials’ concerns over Trump’s speech and determination to get to the Capitol that day—and how the former president pushed ahead on both fronts.
It’s far from clear that the Justice Department is considering any criminal charges against Trump, even as its Jan. 6 investigation gets closer and closer to those in his orbit. One of the biggest hurdles is that most prosecution pathways against Trump require proving he acted with corrupt intent, an element the select committee has focused on proving in its own investigation.
Experts say Hutchinson’s testimony fleshed out the grounds for a possible case against Trump by supplying details about the president’s mindset around Jan. 6 and raised important questions for follow-up by prosecutors.
“Assuming her evidence is corroborated, I’d say that it does add significantly to his criminal exposure almost across the board because it shows a particular state of mind that would be evidence the prosecution could submit to a jury for a number of different types of offenses,” Ryan Goodman, co-director of the Reiss Center on Law and Security at the New York University School of Law, told The Hill.
Michael Bromwich, a former Justice Department inspector general who also served in the independent counsel’s office for the Iran-Contra scandal, said the panel has supplied key evidence about the warnings Trump received on Jan. 6 and in the days leading up to it. “What has been emerging during the course of the select committee’s hearings has the makings of a powerful, multi-prong criminal case against Trump,” he said. “This includes evidence that he was aware of the substantial risks posed by his armed supporters, and his desire to further inflame them by personally traveling to the Capitol.”
Hutchinson said White House counsel Pat Cipollone told her a few days before the attack he was worried if Trump marched to the Capitol it could appear he was trying to incite a riot, obstruct justice, or defraud the electoral count. “Please make sure we don’t go up to the Capitol, Cassidy,” Hutchinson said, relaying Cipollone’s message to her that morning. “We’re going to get charged with every crime imaginable if we make that 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. Hutchinson also revealed that Trump knew many in the crowd that day were armed, but apparently was unconcerned, and still encouraged them to march to the Capitol.
“In my conversations with Mr. [Eric] Herschmann, he had relayed that we would be foolish to include language that had been included at the President’s request,” she said, which repeatedly would use the word “fight” and urged marching to the Capitol. “Both Mr. Herschmann and White House counsel’s office were urging the speechwriters to not include that language for legal concerns, and also for the optics of what it could portray the president wanting to do that day.”
Hutchinson said that Trump had asked for security to remove the magnetometers, or mags for short, because they were interfering with his crowd size, even though White House officials knew, as early as 10 a.m. on Jan. 6, that Trump supporters had knives, guns, bear spray, body armor and spears attached to the ends of flagpoles.
“’They’re not here to hurt me,’” Trump said, according to Hutchinson’s testimony. “‘Take the effing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the effing mags away,’ ” she said, relaying Trump’s comments.
Catherine Ross, a constitutional law professor at George Washington University Law School, called it “an astounding statement.” That’s “implying they’re here to hurt somebody else and that’s fine with me,” she said.
“That also goes to whether he can be indicted for incitement because one of the things that the government would have to show to prosecute incitement is an understanding that violence was likely to follow imminently,” Ross said. “So when you have a mob of people carrying weapons and wearing body armor, that’s a pretty good indicator.”
Many say the whole revelation is key. “What the Hutchinson testimony put in stark relief was not only Trump’s awareness of the threat of physical violence by the mob and the criminal liability attached to it before his speech, but also his desire to let the mob be armed and to encourage them to march with him to the Capitol,” Bradley Moss, a national security law expert, told The Hill. “This filled in factual gaps with respect to intent and the overt act necessary for potential conspiracy charges. Our jails are filled with people convicted of conspiracy crimes for doing less.”
Goodman says it’s significant evidence even though Trump ultimately never made the trip, blocked by Secret Service officials who determined the unscheduled movement too dangerous amid law enforcement radio traffic the Capitol’s security had been breached. “Even though he himself does not end up going, he definitely tells the crowd that he is going to go. So they are led to believe that he is with them and that’s actually what the White House appeared to have been concerned about, which is that he would be strongly encouraging them in such a way that things would be dangerous. And he’d be strongly encouraging them in a way in which it would appear to be an attempt to obstruct Congress,” Goodman said.
“I think his speech itself doesn’t help him by any stretch and if anything adds an additional data point of incriminating evidence,” he said. Goodman added that the episode also raises other possible charges to bring against Trump, including a statute for “aiding and abetting any other federal crimes.” He said, “All we need to think about is any of the rioters who were armed or used weapons in the attack on the Capital, the evidence presented at the most recent hearing does directly implicate Trump in aiding and abetting.”
The committee’s public hearings have also raised new questions that could help guide law enforcement and congressional investigators. The panel subpoenaed Cipollone following Hutchinson’s testimony, which revealed that he had issued grave warnings about the legal dangers of Trump’s involvement with January 6.
Lawmakers are hoping Cipollone could provide information that might shed light on just how much involvement or foreknowledge the White House had in regards to 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 ordered 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 Oath Keepers, right-wing groups whose leaders are separately facing charges of seditious conspiracy related to the Jan. 6 attack. Her accounts of how Meadows and Cipollone responded to the growing threat to the Capitol 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 committee has been strategic at addressing certain questions that need to be answered before the DOJ can decide whether or not to bring a case against 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 question key figures like Cipollone and Meadows.
“I do think the committee has been very effective in laying out a case from start to finish about the objects of a potential conspiracy to overturn an election and then the steps that were taken to achieve that goal,” Zelenko said. “The committee has done a really impressive job at lining up effective witnesses who come across as credible under oath even though they haven’t been subject to any cross examination. I think that they’re far from done, and there are more senior White House staffers that have not agreed to testify.”