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Hutchinson provided ‘nuggets’ for Justice’s criminal probe, experts say

Ex-White House aide’s revelations could fuel investigation of whether Donald Trump was part of a conspiracy or incited violence.

Former White House aide Cassidy Hutchinson testified on June 28 about President Donald Trump’s actions surrounding the Jan. 6 Capitol attack. (Video: JM Rieger/The Washington Post, Photo: Jabin Botsford/The Washington Post)

Former White House aide Cassidy Hutchinson’s testimony to the Jan. 6 committee offered damaging anecdotes about President Donald Trump — including some allegations that legal experts said could factor into the Justice Department’s sprawling criminal investigation of the events before, during and after the Capitol riot.

David Laufman, a former senior Justice Department lawyer now in private practice, said Hutchinson’s testimony “contained credible nuggets of information that would support” prosecutors viewing Trump as an investigative target in a seditious conspiracy investigation. Other legal experts broadly agree that the hearing made it more likely that the former president could become a target of the Justice Department probe — although opinions vary on what charges could be considered. Former federal prosecutor Renato Mariotti said he thought Hutchinson’s information could support an investigation into whether Trump could be charged with incitement to violence.

Enraged Trump tried to lead armed mob to U.S. Capitol, former aide testifies

For months, Attorney General Merrick Garland has refused to say whether Jan. 6 prosecutors are eyeing Trump’s conduct as he and close allies tried to overturn President Biden’s election victory. But in recent days, federal agents have served search warrants and subpoenas, and conducted interviews around the country that show the investigation is moving closer to Trump’s inner circle.

Hutchinson’s account, Laufman said, could take them a step further.

“This witness provided credible testimony under oath, attributing foreknowledge of the impending violence to the president,” said Laufman, who represents some of the U.S. Capitol Police officers injured in the Jan. 6 attack. “Whether at the end of the day the department can conclude it can prove beyond a reasonable doubt that Trump joined a conspiracy remains to be seen, because there may well be an extraordinarily high bar for prosecutors and department leadership to satisfy that standard.”

All the bombshells that Cassidy Hutchinson dropped at Tuesday's Jan. 6 committee hearing

Unlike in a potential criminal case, the Jan. 6 congressional hearings do not include cross-examination of witnesses or the high legal standard that prosecutors face. In addition, the committee did not offer any witness corroboration for Hutchinson’s descriptions of conversations involving Trump or senior aides and advisers.

Trump, in a statement, denied her version of events.

Still, Hutchinson described incidents that paint a damning portrait of Trump in his final days as president, lashing out at those around him and privately agreeing with those who stormed the Capitol. They included two moments from Jan. 6 in which Trump appeared unfazed — or even cheered — by the prospect of violence.

Hutchinson said she was standing near Trump for a conversation shortly before he began speaking to a crowd on the Ellipse, in which he expressed frustration that the crowd wasn’t bigger. Told that some people on the National Mall didn’t want to go through magnetometers to get closer to the stage — a standard Secret Service security measure at events featuring the president — Trump erupted in anger, she said.

“I overheard the president say something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the f-ing mags away,’ ” Hutchinson testified.

Analysis: Trump's had bad moments, but few worse than Cassidy Hutchinson's testimony

Later that day, the crowd stormed the Capitol as Vice President Mike Pence presided over a joint session of Congress to certify the Biden win. Hutchinson said she was back at the White House by then and witnessed a conversation between her boss, Mark Meadows, and White House counsel Pat Cipollone.

Cipollone tried to persuade Meadows, Trump’s chief of staff, to get the president to publicly call for an end to the rioting as parts of the mob chanted “Hang Mike Pence,” Hutchinson said.

Meadows, she testified, replied “something to the effect of, ‘You heard him, Pat. He thinks Mike deserves it. He doesn’t think they’re doing anything wrong.’ ”

The former aide also testified that Cipollone strenuously argued against efforts by Trump and Meadows to have Trump go with the crowd to the Capitol that day. She said the lawyer warned: “We’re going to get charged with every crime imaginable if we make that movement happen.”

Meadows’s lawyer, George Terwilliger, said that in his judgment Hutchinson’s testimony “would not withstand a basic cross examination and, if that is correct, it is unlikely to stand the test of time either.”

Hutchinson testified to the committee that Cipollone thought the president might be charged with obstruction if he went to Congress. “He was also worried that it would look like we were inciting a riot or encouraging a riot to happen up at the Capitol,” she said in a taped deposition played Tuesday as part of the nationally televised hearing.

Cassidy Hutchinson's path from trusted insider to explosive witness

Mariotti, now a lawyer in Chicago, said he doubted Hutchinson’s testimony advances any potential case against Trump for seditious conspiracy, the charge levied against some members of the Proud Boys and Oath Keepers extremist groups in connection with the riot. But her testimony could put federal prosecutors closer to reaching the high legal bar required for charging someone with incitement to violence, he said.

“This testimony made it plausible that the Justice Department might find sufficient evidence that Trump knew his crowd would immediately break the law, a legal standard known as ‘imminent lawless action.’ I think there’s enough there,” Mariotti said. “But I still think there’s work for the prosecutors to do to prove what active steps he took. Today’s testimony did not speak to whether or not he conspired with others to storm the Capitol, but it’s certainly very significant.”

After the hearing concluded, Hutchinson’s lawyers, Jody Hunt and William Jordan, issued a statement on her behalf, saying that while she “did not seek out the attention accompanying her testimony today, she believes that it was her duty and responsibility to provide the Committee with her truthful and candid observations of the events surrounding January 6. Ms. Hutchinson believes that Jan. 6 was a horrific day for the country, and it is vital to the future of our democracy that it not be repeated.”

What we know -- and don't know -- about what Trump did on Jan. 6, 2021

Laufman, the former Justice lawyer, said the department probably would want to interview Hutchinson in light of her congressional testimony.

He also said texts sent to prospective committee witnesses and released during the hearing by Rep. Liz Cheney (R-Wyo.) point to possible witness tampering — though a lot depends on who sent and received those messages. The committee did not reveal that information.

“[A person] let me know you have your deposition tomorrow,” one of the messages read. “He wants me to let me you know that he’s thinking about you he wants you to know that you’re loyal and you’re going to do the right thing when you go in.”

An unidentified witness described receiving messages for the committee: “What they said to me is, as long as I continue to be a team player, they know that I’m on the team, I’m doing the right thing, I’m protecting who I need to protect, you know, I’ll continue to stay in good graces in Trump World. And they have reminded me a couple of times that Trump does read transcripts and just to keep that in mind as I proceeded through my depositions and interviews with the committee.”

“Depending on who the unnamed parties are … those types of communications are certainly classic witness tampering, efforts to intimidate future testimony by witnesses before Congress who are sworn to tell the truth,” Laufman said. “Those kinds of statements could have been taken out of a Mario Puzo screenplay of ‘The Godfather.’ ”

Rep. Jamie B. Raskin (D-Md.) said the panel won’t tolerate witness tampering. “We haven’t had a chance to fully investigate it or fully discuss it, but it’s something we’re looking at.”

Ultimately, Laufman said, the question of witness tampering may be a “sideshow” to the larger questions of criminal conduct raised by the publicly known evidence. “It’s a target-rich environment right now,” he said.

Rosalind Helderman contributed to this report.

The Jan. 6 insurrection

Congressional hearings: The House committee investigating the attack on the U.S. Capitol held a series of high-profile hearings to share its findings with the U.S. public. What was likely to be the panel’s final public hearing has been postponed because of Hurricane Ian. Here’s a guide to the biggest hearing moments so far.

Will there be charges? The committee could make criminal referrals of former president Donald Trump over his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.

What we know about what Trump did on Jan. 6: New details emerged when Hutchinson testified before the committee and shared what she saw and heard on Jan. 6.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6.

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