Cassidy Hutchinson clearly struck a chord across the political spectrum. The testimony by former aide to Mark Meadows before the Jan. 6 select committee, Donald Trump defenders last week prompted a series of ineffective and sometimes absurd attempts to discredit her. It also inspired another round from comment about or the Ministry of Justice should sue Trump – culminating in the weekend with the Washington Post editorial board arguing that the department should conduct “an intensive criminal investigation” into the conduct of senior Trump White House officials, including “Mr. Trump himself.”
Better late than never, but even if such a thing happens, the Justice Department’s delay could be costly. By apparently letting Congress take the lead in investigating Trump and his inner circle and by poorly coordinating its efforts with the Jan. 6 commission, the department has its own chances of successfully prosecuting Trump and those closest to him. are undermined.
In fact, the commission’s bombshell hearings have only underscored the risks of the DOJ’s approach: Key witnesses have now given multiple interviews that could be used to discredit them or undermine their testimony if they ever change the position in a take criminal proceedings.
Using a witness’s previous statements in an attempt to discredit them is one of the the most basic tactics of cross-examination during a trial. It is also one of the most effective, even with witnesses who would otherwise appear to have a lot of credibility and little motive to lie or cover up their testimony. Therefore, lawyers preparing for a trial spend an extraordinary amount of time going over previous statements of key witnesses in great detail, especially if those statements were given to government investigators or agencies, in which case the witness has a particularly important incentive to accurate and truthful to avoid fines for lie to the government†
The recent implosion from special counsel The Case of John Durham to Michael Sussmann, an attorney for the 2016 Hillary Clinton campaign, grimly illustrates the point. Prior to Sussmann’s indictment, the key witness against him — former FBI General Counsel Jim Baker — had provided multiple versions of the relevant events to investigators in Congress and the Department of Justice’s Inspector General’s office, who appeared to differ in small but material ways† When Baker took the position, he claimed that he “100 percent trustabout his memory, but defense attorneys made effective use of the apparent inconsistencies when they subjected him to cross-examinationin the end contribute to the acquittal of Sussmann†
Hutchinson has previously given several interviews to the Jan. 6 committee switch lawyers because she had more information that she wanted to share with the panel. That suggests that some of her most striking testimonial — maybe Trump’s comments about armed supportershis confrontation with his Protection of the Secret Serviceeven the ketchup — may not have been in previous accounts to the committee. If one day she were a witness in a criminal trial about these events, any competent defense attorney will mine them for anything that could appear to be an inconsistency or omission—even if the relevant information had not been specifically sought out by her interrogators—in order to suggest she is unreliable. (“In fact, you didn’t even tell the committee x, y, and z in your first few meetings, did you?” etc.)
Another witness who has already testified before the Jan. 6 committee presents a more striking version of the potential problem.
Richard Donoghue, the deputy attorney general in the waning days of the Trump administration, recently testified about a Dec. 27, 2020 conversation in which Trump pressured Donoghue and then-Attorney General Jeffrey Rosen to investigate a litany of election fraud allegations. Donoghue testified at the televised hearing that he made it “very clear to the President what our investigations had revealed, and that we had concluded based on actual investigations, actual witness interviews, actual document reviews that these allegations simply had no value.” He continued: “While the president was going through them, piece by piece I was going to say no, that’s not true. That is not true. And to really correct him – in a serial way as he went from one theory to another.”
It sounded impressive, dramatic and consistent. One of the Commission’s theories of 6 January about criminal liability is that Trump broke the law by lying about voter fraud to avoid the certification, so Donoghue’s testimony on the appeal also sounded like it could be key piece of evidence that Trump knew his claims were false leading up to January. 6.
However, Donoghue’s account was not quite right an earlier version that in a closed-door interview with the Senate Judiciary Committee a year ago, who investigated the same events. When asked about the same phone call, Donoghue testified that “the president did the vast majority of the talking.” Speaking of Trump’s various fraud allegations, Donoghue explained that “we kind of took the approach of saying, you know, ‘Yeah, we’re aware’, or if we’re not, admitting:” Well, we haven’t heard that one before.’” According to Donoghue, he and the acting attorney general had planned this out in advance — agreed in advance that their strategy would be to tell the president we’re doing our job. sir, we understand. We’re doing our job.” And try to leave it at that as much as possible.”
This didn’t quite sound like the brave, truthful moment Donoghue described in his television appearance. Even if there are benign reasons for that, any decent lawyer would argue that Donoghue changed his story to make himself look better and Trump worse. Perhaps the argument would go, he did it to improve his public reputation and professional standing, or simply because the truth — that he was a top law enforcement officer who, along with the acting attorney general, listened idly as Trump spewed dangerous nonsense — makes fun of him.
The details of Hutchinson and Donoghue’s earlier testimonies were made public largely by accident. We do not know if and to what extent other witnesses, whose previous testimony remains largely secret, would face similar questions if they were tested in court.
This issue — the potential dangers of key witnesses making statements to various investigators — is known to detectives and prosecutors in complex cases. They try to avoid such problems by minimizing the number of times key witnesses speak to other investigators. But it often happens when prosecutors conduct a so-called parallel criminal investigation alongside a civil regulator, such as the Securities and Exchange Commission, who wants to interview someone who may be of interest in a potential criminal case over the same underlying conduct.
Dealing with it could, in theory at least, be as simple for prosecutors as maintaining a healthy and collegial dialogue with their civilian counterparts and asking them not to interview certain people so as not to create a paper trail that could later are used by defense attorneys to accuse their credibility. This doesn’t always go smoothly, since those other detectives have a job to do as well, and understandably they don’t like it when Justice slows down their work (even if they eventually accede to the request).
There have been some notable ones coordination problems between the select committee and the Department of Justice, but they seem to be mostly the department’s fault – and that seems to be true here too. The New York Times recently noticed that “it remains unknown whether prosecutors are looking directly at Mr Trump’s own involvement in undermining the election or inspiring the mob that wreaked havoc at the Capitol,” but after Hutchinson testified, the newspaper reported what federal prosecutors are working on the investigation of the office on January 6 “saw the assistant’s performance” and “were as amazed at her story… as other viewers.”
DOJ officials blamed them for feeling “blinded” by the commission’s unwillingness to provide anything the videos and transcripts of his interviews, but in fact the anecdote doesn’t resonate with the Justice Department as much as it does on the commission, as it suggests that prosecutors failed to obtain Hutchinson’s testimony themselves, despite being readily available to them.
It would be too simplistic to suggest that this problem was completely avoidable, but it could have been remedied if the Department of Justice had taken immediate action. a joint investigation into Trump’s behavior along with those closest to him in the White House and his reelection campaign, and then… explained so much to the committee (and ideally to the public). We’re all essentially left behind instead in the dark on the scope of the department’s investigation, leading many people to express same frustration shared by some of the committee’s own members.
One of them, Rep. Zoe Lofgren (D-Calif.), had… a very appropriate response over the weekend to the Justice Department’s reported displeasure over Hutchinson’s testimony. “I was surprised that the prosecutors were surprised,” she said. “What are they doing there?”
It’s a good question.