After 20 million people tuned in to its inaugural hearing earlier this month, the U.S. House of Representatives’ Select Committee to Investigate the January 6th Attack on the United States Capitol attracted waning attention in the following weeks. Television ratings dropped. The Americans political news media became preoccupied with other coverage, including of the U.S. Supreme Court’s highly consequential decision overturning Roe v. Wade, the 1973 ruling that had guaranteed a constitutional right to abortion in America. But then, this past Tuesday, the committee stunned official Washington, the U.S. media, and Americans generally with the testimony of Cassidy Hutchinson, a 26-year-old former aide to President Donald Trump’s Chief of Staff Mark Meadows—an explosive account of what she’d seen and heard in the days leading up to January 6th and during the chaos of the day, concerning what Trump and his aides knew, what they were thinking, and how they behaved. It was all unusually dramatic, even by the standards of Trump-related news. But how important is it?
Alan Rozenshtein is an associate professor of law at the University of Minnesota, a senior editor for Lawfare, and formerly an attorney at the U.S. Department of Justice. According to Rozenshtein, some of Hutchinson’s testimony—for instance, her second-hand description of an irate Trump having thrown a lunch plate, apparently with a volume of ketchup on it, against the wall—probably wouldn’t be relevant to any potential prosecution of Trump by the U.S. Justice Department. But her statements about the former president’s advanced knowledge of potential violence—and about his intentions and general state of mind on January 6th—are a different matter. In the nearer term, Rozenshtein sees them as increasing the likelihood that other Trump associates will be more cooperative with the congressional committee, as its hearings continue over the summer. In the farther term, he sees them as increasing the odds of Trump facing criminal charges from the Justice Department—another surreality of the times in a country where the former president remains the most powerful person in the Republican Party and may yet seek reelection to the White House two in two years.
Graham Vyse: What are the key points in Cassidy Hutchinson’s testimony?
Alan Rozenshtein: Her testimony was largely an account of important events on—and in the days leading up to—January 6th. She testified that the White House, including Trump and Meadows, had advanced knowledge that some of the people going to the “Stop the Steal” rally were armed with guns, knives, spears, and other weapons.
She also offered remarkable testimony about what took place on the day of the rally: Trump was very frustrated that the crowd wasn’t closer to him, because that would have looked better on TV. When he was told that people in the crowd were armed—and that they couldn’t get closer because of the “mags”—the magnetometers, otherwise known as metal detectors—according to Hutchinson, he said, “I don’t effing care that they have weapons. They’re not here to hurt me. Take the effing mags away.”
She testified to second-hand knowledge, as well—via Tony Ornato, then the deputy White House chief of staff—from after the rally, when Trump was in his armored vehicle nicknamed "the Beast.” The president wanted the Secret Service to drive him to the Capitol so he could join the crowd gathering outside the building. When the Secret Service refused, Trump tried to grab the vehicle’s steering wheel, and then lunged at a Secret Service officer, before calming down and returning to the White House.
Hutchinson described Trump’s continued unwillingness to do anything about the rioting once he got back there. She relayed a particularly powerful scene in which White House Counsel Pat Cipollone was basically begging Meadows to go with him to convince Trump to do something, noting that rioters were chanting, “Hang Mike Pence!” Meadows said that Trump thought the rioters weren’t doing anything wrong—and that Pence deserved to be hanged. The president later sent out a tweet criticizing Pence, which may have inflamed the whole situation further.
Vyse: What in Hutchinson’s testimony was new information?
Rozenshtein: This was the first time the public heard that story about Trump in the Beast, as far as I know, and she provided new testimony about the president being told about armed people in the crowd. That language about “they’re not here to hurt me” and his desire to take away the mags was most notable to me. Hutchinson also testified that she had to clean ketchup off a wall in the White House dining room after a valet told her that an “extremely angry” Trump threw his lunch plate. Of course, shattering a plate against a wall isn’t a crime.
Vyse: Not usually. So, how would you assess which parts of her testimony were relevant to any potential prosecution?
Rozenshtein: I’m not sure a judge would allow evidence about the shattered plate and the ketchup. In order for evidence to be admissible, its probative nature must outweigh its prejudicial nature. A judge can say, This evidence isn’t really that important. It just makes the guy look bad. Another category of statements would be those that are definitely relevant to a criminal investigation but may not be admissible under the rules of evidence. There are questions about how much of what she said is hearsay—second-hand information—some of which might be admissible and some of which wouldn’t be.
In order for evidence to be admissible, its probative nature must outweigh its prejudicial nature. A judge can say, This evidence isn’t really that important. It just makes the guy look bad. Another category of statements would be those that are definitely relevant to a criminal investigation but may not be admissible under the rules of evidence. There are questions about how much of what she said is hearsay—second-hand information—some of which might be admissible and some of which wouldn’t be.
In the meantime, it’s implicit in your question and important to remember: A congressional hearing isn’t a criminal case. It’s a mistake to judge the success, failure, propriety, or impropriety of a hearing by criminal evidentiary standards.
Vyse: How do you judge the success of this hearing, then?
Rozenshtein: Her testimony is a real victory for the committee in demonstrating that its hearings aren’t simply about taking information it previously learned and packaging it in a publicly accessible way. Which ought to give the committee more confidence in its work. To the extent that it’s been pulling punches, holding things back, or wanting to feel out its credibility with the American people, I expect it now to feel more emboldened. If you’re someone in Trump’s circle who's been resisting cooperation with the committee, testimony like Hutchinson’s increases the pressure on you to cooperate. It shows you that the committee is prepared and able to go deep in its investigation—and that you should think seriously about getting off a sinking ship.
Vyse: You think Hutchinson’s testimony makes it more likely that those in Trump’s circle who’ve been resisting cooperation with the committee, as you say, will now be more cooperative with the committee?
Rozenshtein: Yes, I do.
Vyse: What evidence from Hutchinson’s testimony would be most relevant to a potential criminal prosecution from the Justice Department?
Rozenshtein: Evidence that goes to Trump’s knowledge about the danger of the crowd is highly relevant, as is any evidence that goes to Trump’s intent. When you hear testimony that Trump said armed people in the crowd were “not here to hurt me” and urged them to go to the Capitol—and you combine that with the rest of the evidence—it’s no longer in much doubt. He was acting either with the intent to cause disruption—or even violence—to Congress or, at the very least, with the knowledge that those outcomes were foreseeable and likely.
There’s a concept in criminal law known as mens rea, which is a Latin term for “guilty mind.” It’s what differentiates murder from manslaughter. You can establish mens rea by showing that someone actually intended to do what they did. There are also crimes like depraved-heart murder. For instance, if you’re out in public and you start shooting a machine gun into a crowd, not because you want to kill anyone but simply because you think firing machine guns is cool, the law judges you as guilty as if you had intended to kill people. You’re culpable for your deliberate indifference to the outcome of that situation. We’ve seen evidence that Trump, at the very least, had a kind of a depraved-heart attitude toward the possibility of disrupting the peaceful transition of power through violence.
Evidence that goes to Trump’s knowledge about the danger of the crowd is highly relevant, as is any evidence that goes to Trump’s intent. When you hear testimony that Trump said armed people in the crowd were “not here to hurt me” and urged them to go to the Capitol—and you combine that with the rest of the evidence—it’s no longer in much doubt.
Vyse: How would this evidence be relevant to prosecutors?
Rozenshtein: Several things need to happen for an indictment to be brought against Donald Trump: First, you have to establish his state of mind, and there’s very little doubt that Trump had a state of mind that could make him criminally culpable. Next, you have to establish that Trump actually acted in a criminal fashion. It’s not enough to think bad thoughts. Despite Hutchinson’s testimony, we still don’t have direct evidence that Trump ever told the mob to go attack the Capitol. He’d said for several months that the election had been stolen.
He tried to make it easier for an armed crowd to assemble. He riled up that crowd. He told them to march on the Capitol. Is what he did enough to establish incitement, insurrection, seditious conspiracy, or other federal charges? It’s a tricky question. On the one hand, the president is an exceptionally powerful figure, and people take his statements seriously, so even if he didn’t literally say to the crowd, “Go attack the Capitol,” you could argue he effectively said that. On the other hand, you could argue we want the president to feel free to speak to the American people and we should be cautious about potentially criminalizing political speech.
There’s general consensus—both among scholars and within the executive branch—that the president of the United States isn’t absolutely immune to criminal prosecution simply by virtue of being president. At the same time, the president has a bunch of constitutional authorities, and it’s tricky to think through when it’s permissible as a constitutional matter—and correct as a matter of statutory interpretation—to apply federal criminal law to actions that may be within or related to the president’s duties. Talking to Americans on matters of public concern is part of those duties.
The hardest issue, which only Attorney General Merrick Garland can decide, is whether a prosecution would be in the public interest. It can’t be in the public interest to allow someone to be above the law, but prosecuting a former president for political acts—especially when that former president is likely to be the frontrunner for the 2024 Republican presidential primaries—would be an extremely big deal. I don’t envy Garland.
Vyse: As of now, what do you expect he’ll do?
Rozenshtein: I used to be skeptical that Trump would be prosecuted in relation to the events of January 6th—and also skeptical that such a prosecution would be a good idea. Now I think it’s more likely than not that he will be prosecuted—and that it probably would be a good idea. I do want to emphasize, though: There’s a lot of room for error in making predictions on this question.
There’s a distinction between statements that are untrue and statements that are lies. To establish that Hutchinson lied to Congress, you’d have to establish that she made false statements that she knew were false. I don’t see any reason to believe that any of what she said is false, but if it were, it would be very difficult to demonstrate that she knew it and intended to mislead.
Vyse: What do you see as the most significant direct challenges to Hutchinson’s testimony since she presented it?
Rozenshtein: There are challenges to some of the specific factual claims she made. Did she really write the handwritten note to Trump that was discussed at the hearing? If it turned out she didn’t, after she claimed she had, that would raise questions about the accuracy of her memories or, worse, her candor. You also have people now disputing things that she said she didn’t have first-hand knowledge about. For instance, she never claimed she was in the vehicle with Trump when he attacked a Secret Service agent. She was relaying a story someone else told her. If people want to challenge that story, they can, but it wouldn’t necessarily reflect poorly on Hutchinson. I’ve yet to come across a reason to doubt the essential accuracy of the important parts of her testimony.
Vyse: Many of Hutchinson’s defenders note that she testified under oath and that lying to Congress is a crime. They point this out as evidence favoring the assumption that she told the truth. I see no evidence that she’s lied, but how theoretically might it be proven that she did?
Rozenshtein: There’s a distinction between statements that are untrue and statements that are lies. To establish that Hutchinson lied to Congress, you’d have to establish that she made false statements that she knew were false. I don’t see any reason to believe that any of what she said is false, but if it were, it would be very difficult to demonstrate that she knew it and intended to mislead.
Vyse: At the end of Hutchinson’s hearing, the Republican vice chair of the committee, Liz Cheney, offered some tantalizing evidence of possible witness tampering in the committee’s investigation, which would be a criminal offense. What did you make of that?
Rozenshtein: Liz Cheney is very good at her job—and she’s got a flair for the dramatic. Dissertations will be written about this committee as theater. Yes, as you say, you can’t tamper with witnesses. The line between talking to a witness and tampering with a witness is blurry, but if you’re an honorable person—or merely cautious—you don’t go anywhere near that line. I’ve seen speculation that the committee took the unusual step of putting Hutchinson on the stand—even after she’d testified privately—because they worried people in Trump’s circle were trying to get to her. They wanted to get her testimony out in public as soon as possible. If people have been tampering with witnesses, they have to be investigated and prosecuted. There’s that old cliche: It’s not the crime, it’s the cover-up. In the case of January 6th, though, it’s definitely the crime—and covering-up is potentially part of it.