The testimony delivered Tuesday to the Jan. 6 House select committee by Cassidy Hutchinson, who was an aide to Trump White House chief of staff Mark Meadows, was full of bombshells. But one may have escaped some people’s notice: the moment she describes White House Counsel Pat Cipollone warning about the criminal liability that then-President Donald Trump and others might face as the mob descended on the Capitol on Jan. 6, 2021.
Hutchinson’s testimony had many dramatic moments. There was the revelation that Trump expressly wanted metal detectors removed so that supporters who were armed could join the rally crowd; the incredible scene of him grabbing the wheel of the presidential limousine when the Secret Service refused to take him to the Capitol; and testimony that Meadows and Trump legal adviser Rudy Giuliani sought presidential pardons in the aftermath.
Trump, in a social media post on Tuesday, denied the allegations.
But on the morning of the insurrection, Hutchinson testified, Cipollone urged her to prevent Trump from going to the Capitol building with the growing, seething crowd of protesters he had assembled nearby. Hutchinson described the scene this way:
Mr. Cipollone said something to the effect of, “Please make sure we don’t go up to the Capitol, Cassidy. Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.”
Keep in mind that one of Cipollone’s jobs as White House counsel was to keep people who work in the White House, including the president, from committing crimes — something that, according to Hutchinson, he was clearly worried about.
Notably, Cipollone’s fear intensified as Jan. 6 wore on. Hutchinson testified that as the riot spun out of control, Cipollone came “barreling down the hallway towards our office” to tell Meadows they had to talk to the president. She continued:
And Mark looked up and said, “He doesn’t want to do anything, Pat.” Cipollone then replied, “Mark, something needs to be done or people are going to die and the blood is going to be on your f---ing hands. This is getting out of control. I’m going down there.”
As illuminating as it would be to hear from him, Cipollone has refused to cooperate with the committee. So what exactly did Cipollone fear here?
It’s possible, of course, that in that last reported exchange, Cipollone was merely expressing his horror as an American at what was about to happen, not his assessment as a lawyer. But recall that days earlier, Cipollone had reportedly raised specific concerns about legal exposure relating to the Capitol.
In a discussion on Jan. 3, Hutchinson testified, Cipollone urgently warned that Trump going to the Capitol on Jan. 6 would raise serious legal concerns. Hutchinson and Cipollone had conversations about possible statutes that might be implicated, she said.
While it’s not entirely clear which statutes they discussed, a reasonable guess based on Hutchinson’s testimony is obstruction of an official proceeding (the congressional count of electors) and conspiracy to defraud the United States (conspiring to obstruct the electoral count, a lawful function of government).
And so, when Cipollone saw the mob of Trump supporters heading to the Capitol and rushed down the White House hall to warn Meadows that this must be stopped, he might have had legal concerns in mind.
“It seems like if he was potentially thinking in legal terms — he was thinking about obstruction of Congress and conspiracy to defraud the U.S.,” Randall Eliason, a specialist in white-collar-crime law, told us.
What’s critical here is that Trump and his advisers have never conceded that the mob assault on the Capitol was in any way connected to his efforts to procedurally overturn the election (which they don’t concede was criminal or wrong either, but put that aside for now).
Yet Cipollone clearly seemed to see Trump’s manipulation of the mob as directly linked to the president’s efforts to subvert the electoral count, which Cipollone seemed to see as potential criminality.
“This was what was so devastating about today,” Eliason says, noting that Tuesday’s hearing provided the most direct evidence yet tying Trump’s machinations “directly to the mob and the violence.”
Neal Katyal, a former U.S. solicitor general, notes that when Hutchinson testified that Trump expressly wanted supporters carrying weapons let in to the rally on the Ellipse, that might have also pointed to legal vulnerability.
“The picture painted today is one of Trump assisting with an insurrection,” Katyal told us, noting that this could implicate the federal statute against rebellion or insurrection, or lending aid and comfort to either.
What’s still unclear is whether Trump saw the use of the mob to pressure his vice president, Mike Pence, as part of the plan all along in the days leading up to Jan. 6, 2021, or whether he came to see the violence as a weapon in real time, as it developed.
But as Eliason notes, even if it’s the latter, that might not necessarily be exonerating. After all, Trump refused to call off the mob for more than three hours, helping lead to horrifying destruction and death, apparently as part of a broader effort to disrupt the election’s conclusion.
“The failure to try to stop it, and the encouraging of it, is further evidence of the overall conspiracy to obstruct,” Eliason said.
“He sat on his hands during the three hours of the attack, giving massive assistance to the insurrectionists storming the capitol,” Katyal added.
And keep this in mind: the Jan. 6 committee vice chair, Rep. Liz Cheney (R-Wyo.), concluded by saying that during the next hearings, the committee will detail still more about what Trump did while the violence raged. Things will get worse for Trump.