On Tuesday, Cassidy Hutchinson provided some of the most damning public testimony yet in the public hearings by the House committee investigating January 6. Speaking clearly, deliberately, and thoughtfully, the former aide to White House chief of staff Mark Meadows provided a riveting and legitimately disturbing account of Donald Trump’s conduct before and during the attack on the Capitol. She appeared to provide the facts as she knew them, without needless speculation. And she seemed to take pains to specify precisely what she knew, how she knew it, and, as importantly, what she did not know. On its face, it was about as credible a performance as any witness can provide.
Hutchinson’s testimony also added distinct pieces of evidentiary support for what committee Vice-Chair Liz Cheney described during the first public hearing in June as a “sophisticated seven-part plan to overturn the 2020 election and prevent the transition of presidential power.” The committee’s members have made no secret of the fact that they believe that these are appropriate lines of inquiry for a criminal investigation that they would like to see the Justice Department undertake (assuming that it is not already doing so) and that Trump’s conduct could warrant criminal charges. Hutchinson’s testimony in particular advanced the theory that Trump intended for the violence at the Capitol to occur, though not as conclusively as some of the initial reactions from legal observers suggested.
Tuesday’s hearing focused largely on two specific elements of the supposed seven-part plan: first, Trump’s solicitation of a mob to intimidate Congress and Vice-President Mike Pence to overturn the results; and second, Trump’s failure to intervene to stop the violence as he watched it unfold from the White House over several hours. Among other things, Hutchinson testified about some of the warnings about potential violence that the White House received in the run-up to the siege of the Capitol, including that she heard Rudy Giuliani refer to the Proud Boys and the Oath Keepers. She discussed being present as Trump prepared to take the stage for his speech on January 6 and his insistence that security officials allow armed supporters to attend. “I don’t fucking care that they have weapons,” she heard him say. “They’re not here to hurt me.” She also described hearing about how Trump lunged at a member of his own Secret Service protection when they refused to take him to the Capitol after his speech — an appearance that could have inflamed matters even further. And she recounted hearing Meadows talk with White House counsel Pat Cipollone amid the chaos in the West Wing that afternoon about how Trump “doesn’t think they’re doing anything wrong.” Finally, she quoted Meadows telling Cipollone after meeting with Trump that the president spoke approvingly of the mob’s chants to “hang Mike Pence,” saying of Trump, “He thinks Mike deserves it. He doesn’t think they’re doing anything wrong.”
Put simply, all of this testimony seemed to suggest that Trump intended for the violence to unfold that day as part of an effort to intimidate Congress and pressure Pence to throw the election to him. On this theory, some criminal charges that might apply include obstruction of an official government proceeding (the congressional certification of Biden’s election) and conspiracy to defraud the government. The committee itself successfully invoked those two charges before a federal judge in California in its effort to obtain documents from Trump lawyer John Eastman, and the judge ruled that it was “more likely than not” that Eastman and Trump conspired to break the law based on the information presented to him. Prosecutors might also consider, at least in theory, charges concerning incitement of insurrection or seditious conspiracy — the latter of which has been brought by the Justice Department against members of the Proud Boys and the Oath Keepers. These charges have different legal elements and political overtones, but to varying degrees, they might fit the basic version of events that Hutchinson laid out.
From a potential defense perspective, the account was not without its wrinkles. I was most intrigued by Hutchinson’s account of Trump pressuring the Secret Service to allow people who were armed to attend his rally. “I don’t even care that they have weapons. They’re not here to hurt me,” she quoted him saying backstage before speaking to the crowd. “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.” But even Hutchinson seemed to think that Trump’s interest at that moment may simply have been in increasing the size of the crowd (a longtime preoccupation of his), at one point describing this as “likely the primary reason” for his anger. If that were all that was happening, that would make Trump an extremely reckless narcissist, but the implication — which hung in the air but that no one quite articulated or grappled with head on — was that Trump deliberately wanted armed attendees in the crowd so that they would end up at the Capitol in order to participate in an armed siege outside (and potentially even inside) the building. There is a significant difference between these two scenarios, both legally and practically, and reasonable observers could fairly disagree about how strong an inference on this point should be drawn from Trump’s comment that “[t]hey can march to the Capitol.”
It was also telling that Cheney did not simply ask Hutchinson straight out if she believed that Trump wanted to let in armed attendees specifically so that they would participate in a large armed siege of the Capitol. This was a conspicuous omission in a line of questioning that would have benefited from clearer punctuation — reflecting, perhaps, a deliberate decision not to have Hutchinson straightforwardly weigh in on the implication that hangs very heavily (perhaps too heavily) on Trump’s comment that the attendees “can march to the Capitol from here.” Hutchinson may not have agreed or may herself be uncertain, and she may already have expressed as much to investigators in her earlier testimony.
The fact that Trump did nothing to stop the violence as it unfolded, perhaps hoping that it would succeed in intimidating Pence, is also stark circumstantial evidence that he intended it to occur in the first place, but here too, you can make out the beginnings of a defense if you zoom out a bit. So far as I can tell, the committee has produced no significant evidence — at least not yet, and of course there are more hearings to come — that Trump intervened to prevent some sort of critical law-enforcement response as the Capitol was attacked, that he was presented with any sort of plan for a crucial law-enforcement action that he rejected that afternoon, or, in the days and weeks leading up to January 6, that he did anything to prevent any of the relevant federal agencies or Cabinet officials from properly preparing for the day’s events (otherwise known as competently doing their jobs). If you were investigating someone for deliberately planning or cultivating a riot but that person also happened to supervise the people in charge of security, these are things you would presumably hope to run down.
As for whether there is “enough” to charge Trump — the question that observers have debated after each of the committee’s hearings this month — there is no need for viewers to make that judgment now. Indeed there is a real risk, as I have mostly done here, in reacting to immediate, incremental pieces of information in isolation (however captivating they may be) when they form part of a larger body of information gathered by the committee that is still coming into public view and that is so sprawling and complex that it can be challenging to process in real time. There is also a very real structural limitation of the hearing, which is that it has the visual trappings of a trial — with live testimony, snippets of depositions, audio and video exhibits, and visual aids — but there is no defense, so as I noted recently, we need to be mindful of context, potential counterevidence, and rebuttals that we might not be seeing. Already, for instance, Secret Service agents have reportedly disputed Hutchinson’s account of being told that Trump assaulted his own security inside a vehicle after the speech. This is not so much a problem for the credibility of Hutchinson, who specified in detail exactly how and from whom she heard this information secondhand, but it reflects the potential vulnerabilities of an effort to construct an accurate and comprehensive factual account from people who have differing levels of personal knowledge and may not have been percipient witnesses to all of the relevant events.
In a way, the framing of the question is also not fair to the committee. One of their clear objectives is to influence electoral politics, but to the extent they are legitimately grappling with the potential criminal implications of the conduct that they are investigating, the committee’s members have correctly noted that all they can really do is lay out information and evidence that might seriously inform the Justice Department’s work and thinking about investigating and perhaps charging Trump and other significant figures in his orbit.
As for what the department is up to under Attorney General Merrick Garland, that remains about as opaque as ever. Last week, prosecutors seized Eastman’s phone and devices belonging to Jeffrey Clark, the former Trump Justice Department official, during a raid on his home. This suggests, as they say, an intensifying inquiry — but exactly how far along and how expansive that work is remains to be seen. Indeed, on the same day that Hutchinson testified, the New York Times suggested that those investigative developments may have grown out of the department’s interest in the “alternate” (or “fake”) electors scheme. (A separate story specified that “it remains unknown if prosecutors are looking directly at Mr. Trump’s own involvement in subverting the election or inspiring the mob that wreaked havoc at the Capitol.”) That is a worthy undertaking, but it is also just one of many things that the department could and should have been aggressively investigating well over a year ago as part of a concerted criminal investigation into the conduct of Trump and those closest to him. Judging from the results so far, the investigators on the committee have done their jobs exceptionally well. The verdict is still out on their counterparts in the Justice Department.