What to do about a Radicalized Supreme Court, How to Bring Down a Mob Boss, and more

II. Impressions from the June 28 Select Committee January 6th Hearing

There wasn’t supposed to be a hearing this week, but the committee received new evidence and wanted to put it immediately before the American people.

The witness is Cassidy Hutchinson, a White House staffer and aide to Trump White House chief of staff Mark Meadows with an office just steps away from the Oval Office. She was privy to basically everything that happened.

Apparently what happened was this: Hutchinson was originally represented by a lawyer with “ties to the Trump orbit.” In early June, she switched to a lawyer with ties to Jeff Sessions.

She then decided to reveal things she hadn’t revealed. Why might she change her mind? In her testimony, she talked about what she felt when she understood that Trump was refusing to call off the rioters on January 6. She testified that she took her job seriously, and as a White House staffer, she saw her job as (at least partly) presenting the administration in the best possible light. But as an American, she was appalled. She is still struggling with her emotions.

Moreover, the committee today presented evidence of Trump world intimidating witnesses:

Cassidy Hutchinson’s identity was kept secret most of yesterday because of security concerns:

The implication, of course, was that one reason Hutchinson had not been completely forthcoming earlier was that she felt intimidated and was afraid to testify truthfully.

How about this for a bring-down the mafia boss plot twist: The Consigliere stays quiet and is willing to take the fall for the Boss . . . but the Consigliere has an assistant who knows everything.

(Aside, I’m not persuaded that Mark Meadows is staying quiet. He may very well be cooperating with the DOJ but stopped cooperating with the committee because of death threats, and is now talking to the DOJ where his testimony will be in private and there are no leaks.)

But it’s a plot twist Mario Puzo didn’t think of.

To sweeten the plot twist: In a world ruled by older men, the assistant is a woman in her 20s.

If you didn’t watch the hearing, you owe it to yourself to do so. You can watch it in lots of places, including C-Span.

As before, the witness is a solid Republican. She worked for Steve Scalise and Ted Cruz.

Here are the gasp-worthy highlights (from Hutchinson’s sworn testimony, which is admissible evidence under various exceptions to hearsay rules):

On January 2, Giuliani asked Hutchinson, “Are you excited for the 6th? It’s going to be a great day.” She asked what he meant. Giuliani said, “We’re going to the Capitol.”
She related this to Mark Meadows, who told Hutchinson, “Things might get real bad on the 6th” That was when she got scared.
At about 10:00 am, the White House staff knew the rallygoers had knives, spears, guns, and other weapons.
Trump said he didn’t care that the crowd had weapons.
Trump was annoyed that people with weapons were being kept out because he wanted a large crowd.

Even while planning an insurrection, Trump was worried about his crowd size.

Trump wanted the Secret Service to remove the magnetometers to allow in people who had guns.
Trump didn’t care if people had weapons because they were not there to hurt him.

Make sure you caught that. It’s an important detail.

Ahead of January 6, Trump wanted to go to the Capitol with the rioters. There was even “a discussion of Trump going into the House Chamber.” Cipollone didn’t want Trump marching to the Capitol because it would set him up for criminal liability. Trump insisted on going, so Secret Service scrambled for a way for him to go.
After Trump’s speech at the Ellipse, he got into the car expecting to be taken to the Capitol. The driver and secret service refused. Trump was “irate” and said, “I am the f-ing president. Take me to the Capitol now.” He tried to grab the wheel and was rebuffed. He then lunged at his driver.

Trump knew the crowd had weapons and planned in advance for them to march to the Capitol.

Trump said that the only person who did anything wrong on January 6 was Pence for not going along with what he wanted.
Giuliani, Eastman, and others set up a “war room” at the Willard Hotel. Trump asked Meadows to call Roger Stone and Michael Flynn on the evening of January 5th.
When the White House learned that the rioters were in the Capitol, Mark Meadows did not care about the fact that the rioters were getting close to the House Chambers. White House counsel Pat Cipollone, on the other hand, said to Mark Meadows, “Mark, something needs to be done, or people are going to die and the blood’s gonna be on your F’ing hands.” Meadows responded by saying that Trump didn’t want to do anything.
Guiliani and Meadows both asked for pardons for their roles in the events of January 6.

And this one:

Trump was so angry that Bill Barr refused to accept his lies about the election that he threw dishes against the wall. Hutchinson walked in and saw ketchup on the wall and a broken porcelain plate. Furious, he threw his lunch against the wall.
Hutchinson said it wasn’t the first time she’d known him to throw dishes (or yank tablecloths in anger).

Meanwhile, much of the Republican leadership is still shielding and defending Trump

The Republican Party and much of the Republican leadership are still shielding Trump for two reasons:

(1) Some are still shielding him because they know when they turn on Trump, he will implode the Republican Party and they’ll lose a few elections until they regroup. Put another way, they need Trump’s “base” to win elections because their policies are unpopular, and

(2) Others still embrace him because they believe in everything he stands for. Example: The committee showed a clip of Michael Flynn taking the Fifth after being asked whether he believes in the peaceful transition of power.

It’s also possible that some wimps are still scared, in which case they should learn a few lessons from 26-year-old Cassidy Hutchinson.

Some of those still protecting Trump and refusing to cooperate may have second thoughts after watching Cassidy Hutchinson testify. In fact, Bennie Thompson concluded the hearing by appealing to such people. He said, “If you suddenly recall new details, or find the courage you didn’t have before . . . we are here.”

Dear People Who Wanted Charged Brought Last Year: Sometimes it takes time to get witnesses to come forward like this. See how much better this is than, “We all know that Trump knew.”

(If you don’t know what I’m talking about, see this post.)

III. What This All Means In Terms of Criminal Prosecutions

Cassidy Hutchinson’s sworn testimony was solid and damning against Trump. The evidence took us from “everyone knows that happened” (which isn’t actually admissible evidence) to a new understanding of what happened in the form of sworn eyewitness testimony.

It also showed gaps in what we know. For example, we learned that Trump told Meadows to talk to Roger Stone and Michael Flynn on the night of Jan. 5th. We learned that Mark Meadows was planning to go to the Willard ‘war room,’ but Hutchinson talked him out of going because it wouldn’t be appropriate.

It seems to me that the next tasks are to:

🔹get the other witnesses and corroborating evidence, and

🔹fill in the gaps of what we don’t know.

“Come on, Teri, surely there is enough evidence now to indict.”

Certainly, but only a fool would bring charges before learning the entire story.

It’s harder to defend against eyewitness testimony that is corroborated by the others who were there. We heard from one person who was in the room where it happened. Lots of other people were in the room where it happened.

Here’s the best thing that can happen after today’s hearing: Other witnesses saw what Cassidy Hutchinson did, and their lawyers told them this: If you are part of the coverup, you can get in trouble. If you have no liability, you’d better get in line to tell the story.

If you have one witness telling the story, the right-wing will find ways to discredit it. But if other people (including defendants pleading guilty) come forward, all saying, “I heard the same thing. And here are my text messages corroborating my impressions at the time” it’s harder to discredit the story.

If I were prosecuting this (which would never happen because I made up my mind early on never to be a prosecutor 🙂 my goal, under the circumstances, would be to get as many witnesses and as much corroborating evidence as possible.

Witnesses who are reluctant because they are scared, or True Believers, or they want to protect Trump can be persuaded if prosecutors can present enough evidence to the witnesses to show that the prosecution already knows the whole story and can prove it in court.

Because the DOJ has (and will soon have more) electronic records that these witnesses tried to hide, it’s likely that the DOJ has corroborating evidence and can fill in the gaps.

The question the defense lawyers ask is, “How strong is the case against my client.” If the evidence is weak (a single witness giving damaging testimony with twenty other witnesses insisting that it never happened) the defense will respond differently than if the prosecution says, “Look what we have,” and presents evidence so overwhelming that there are literally no defenses.

Also, imagine how much a defendant would love it if prosecutors don’t know all of what happened.

Or imagine if, as evidence is presented, the story keeps changing.

Imagine a prosecutor who says, “Here is what happened,” and tells the jury the theory of the case. Then, a bit later after more witnesses testify, the prosecutor says, “Wait! That’s not what happened! Here’s what happened.”

A prosecutor who keeps changing the story as the trial unfolds will look foolish and unreliable. Right?

Prosecutors need the whole story before bringing a case to court, or they’ll look foolish.

The difficulty with criminal trials isn’t the difficulty of proving intent, it’s the standard of “beyond a reasonable doubt.” The goal of the defense is often just to raise a doubt in the juror’s minds.

The defense’s job is to force the prosecution to prove the client’s guilt beyond a reasonable doubt. (And it IS a noble profession!)

It’s no accident during the hearing in which Cassidy Hutchinson testified, the committee showed evidence of witness intimidation. The implication was that others not coming forward are scared. The hope is that Cassidy Hutchinson, an articulate and brave 26-year-old who made the right decision, might inspire a few more.

Someone else asked me about compelling people to testify. In fact, there has been a lot of talk about how the committee and the DOJ were wimps because they were not trying harder to compel testimony. Here’s the thing about witnesses. You can subpoena them and put them on the stand– but if they don’t want to talk, they’ll find little ways to stonewall you. They won’t recall. They’ll take the 5th. If only 3 people were in the room and each of the three knows that the others are not talking, you’ll never find out what happened in that room.

Here is the heart of the problem: A major political party and major media outlets are shielding Trump.

The goal isn’t to rush a prosecution to make Trump-haters happy.

The goal is to crumble Trump’s support. The goal is to play this right so that enough witnesses come forward so that the defense entirely crumbles and Americans can at least agree on the basic facts of what happened.

I don’t believe punishment can end the threat of right-wing extremism, but if this is done right and the fortress of support Trump has around him crumbles, the majority of Americans (you’ll always have fringe holdouts) can agree on the facts of what happened on January 6.

After some of Trump’s statements, imagine him showing up in criminal court and admitting to everything he did but insisting that it wasn’t wrong. At least we will have the facts. We’ll have the truth.

Truth will save democracy.

Democracy and rule of law required a shared truth or factuality and an intact public sphere. The right-wing lies have shattered the public sphere.

The goal is to build a solid case against Trump because only then will enough Americans confront the truth.

You can see from the time it took Cassidy Hutchinson to come forward that it can take time to get witnesses to want to tell the whole truth. She had to go through a process. This process involved switching lawyers (from a Trump-world lawyer to one associated with Jeff Session) and perhaps rethinking what she should be doing.

Sometimes it takes one person who was in the room when it happened to come forward for others to follow (or the others pull together to discredit that witness).

Sometimes it takes the defense being presented with overwhelming evidence of guilt.

From what we know now, it seems like the dudes in Trump’s inner circle with the most criminal liability are Giuliani, Eastman, Clark, Stone, Flynn, and Meadows. (I may have missed someone) The one most likely to flip is Meadows because he can say he was following orders.

I am not saying that Meadows following orders is a defense, but it lessens his liability. Followers don’t get in as much trouble as the leaders. Meadows strikes me as a spineless wimp who literally does what he’s told.

It was interesting that Bennie Thompson concluded by appealing to others who may have sudden recall of things they forgot, or find some courage they didn’t know they had. These are the ones who need to come forward and tell the whole truth.

When I talk about making sure the case is solid, I don’t just mean making sure that 12 jurors really have no choice but to convict without going against the weight of the evidence. I also mean establishing the truth of what happened on January 6.

There are still too many people deflecting and denying. The goal is for the January 6 deniers to be out on the fringes and not in control of a major political party and news outlets.

So far, nobody from the Secret Service has testified under oath. The above is definitely inadmissible hearsay. Even if someone does contradict Hutchinson’s statement under oath, (1) she was reporting what was said to her, which may not be admissible anyway, (2) eyewitnesses can have different recollections and can see different things, and (3) this is an unimportant point and is an attempt to discredit the witness. In the controlled forum of a criminal court, I don’t believe this would discredit her, even if she reported something that others contradicted. She didn’t witness it first hand.

But the point is a good one, which is why I’m saying that only a foolish prosecutor would rush forward without getting everything.

On social media, I got lots of questions about hearsay. I later learned the reason: The House Judiciary Republicans tweeted this after the hearing:

There are exceptions to the hearsay rule. Much (but not all) of what Hutchinson said was admissible in court. The stuff Cheney and Thompson told us that other witnesses said isn’t.

The threshold question is: Is this evidence admissible?

Much of the evidence you see on the Internet is not admissible in court. If something is admissible (and most of her testimony would be) this doesn’t mean the jury has to believe it. Admissibility just means it can be put before the jury. Then the jury weighs the evidence (including testimony) for reliability.

I’ll add that the rules of evidence, including hearsay exceptions, are very complicated and take a full semester in law school to cover. Even in court, you’ll have lawyers disagreeing over what rules or exceptions apply. If you want a taste of the complexity, click here.

Notice: The House Republicans threw out a tweet saying, “It was all hearsay” in order to get everyone debating the rules of hearsay (which don’t even apply in congressional hearings) instead of talking about the things Cassidy Hutchinson said.

So now, let’s talk about the shocking details Cassidy Hutchingson revealed under the penalty of perjury.