In part, her deficiencies as a fact witness made her a poor target for perjury prosecution.
In part, her deficiencies as a fact witness made her a poor target for perjury prosecution.
I n the end, all anyone should have needed to know about Cassidy Hutchinson’s value as a witness was that, even as Biden Justice Department special counsel Jack Smith was scorching the earth to try to make a case on Donald Trump, he steered clear of her.
Instead, the Trump Justice Department has accomplished one of its seemingly weekly self-owns. By failing to convince a grand jury in a hopeless attempt to prosecute Hutchinson for perjury — indeed, drafting its high-profile Civil Rights Division (CRD) to oversee the ill-conceived effort that had no relation to the CRD’s mission — the DOJ has, on the eve of Election Day, both drawn renewed attention to Hutchinson’s explosive allegations about President Trump’s role in the Capitol riot and enabled the administration’s opponents to argue, colorably if not convincingly, that her testimony must have been accurate.
That testimony before the rigged House January 6 Committee was a devastating spectacle — or at least it would be remembered that way if it could have been corroborated. It wasn’t. Consequently, history should remember the gambit as a one-sided Democratic and Never Trump campaign ad, in which cross-examination was verboten.
The committee was enthralled by Hutchinson’s claims that Trump had exhorted what he knew to be an armed mob to storm the Capitol and pressure lawmakers to refrain from ratifying Joe Biden’s 2020 election victory. She dramatically elaborated that he had gotten into a physical altercation with his security team when the Secret Service rebuffed his demand to accompany the mob. Virtually all of her testimony, however, was hearsay, sometimes of the double or triple variety. Moreover, her accounts of conversations she claimed to have had, or to have overheard, were invariably couched in vagueness — the interlocutors repeatedly described as having said “something to the effect of” something. One listening carefully, rather than rapturously, couldn’t tell whether Hutchinson was effectively quoting these people, interpreting them, or concealing difficulty recalling who said what.
For an experienced prosecutor, Hutchinson was the kind of background witness who, if being truthful, could be valuable for an investigation because she could lead investigators to witnesses who had first-hand knowledge and could thus provide admissible testimony. Yet, she would have no value as a trial witness because her second- and third-hand impressions, even if rooted in reality, could not be elicited before the jury under rules of evidence.
In part, her deficiencies as a fact witness made her a poor target for a DOJ perjury prosecution. Contrary to the president’s ravings about it, Hutchinson’s committee testimony was not really about things he’d supposedly done (although the anti-Trump committee made it sound that way); it was about what she recalled other people saying he had done, with scant eyewitness back-up.
In a viable perjury case, the prosecutor establishes that (a) the witness claimed to observe that X happened, (b) X did not happen, and (c) the witness had a strong motive to deceive. Hutchinson, however, had claimed something more like I heard someone tell someone something to the effect that Trump did something. Ergo, even if it could be established that Trump didn’t do the something in question (or at least that there was insufficient evidence that he did it), that would not necessarily signal that Hutchinson was lying; she could have been mistaken or misinformed.
As we’ve noted many times, perjury is hard to prove, even when deception seems clear cut. The crime is more about intention than action — reading the witness’s mind rather than proving some transaction. It implicates the witness’s degree of knowledge, intent, motive, and — importantly — understanding of what was being asked of her (if the questions aren’t clear and precise, there is no viable perjury case even if the witness was indeed being deceptive). A perjury charge would thus have been exceedingly difficult to prove against such a slippery witness as Hutchinson, especially factoring in a Washington, D.C., jury pool that was predisposed against Trump even before the Trump DOJ’s brazenly politicized prosecutions began. In a Justice Department that prioritizes law enforcement rather than lawfare, the Hutchinson case gets dropped (or never opened), not presented to the grand jury.
A “no true bill” — the document filed with the court when the grand jury declines to approve an indictment — used to be extraordinarily rare. Practically speaking, it shouldn’t happen: A competent prosecutor, seeing which way the wind is blowing based on the grand jurors’ questions and comments, will not ask them to vote if it appears they are troubled by the government’s presentation.
Nevertheless, no true bills are becoming a sufficiently routine feature of Trump’s second term that — as I recounted this week, regarding the latest attempt to charge felonies against James Comey — the Trump DOJ is now resorting to novel ways of circumventing the grand jury (tricks that won’t work because, however inconveniently, the Constitution requires a grand jury indictment to bring a felony case).
The most alarming thing about the attempt to indict Cassidy Hutchinson is the demonstration that there is no senior voice in the administration — not the chief of staff, not top White House or cabinet officials, and certainly not the attorney general (formerly Trump’s personal lawyer) — who has enough influence to dissuade the president from forcing actions that are both imbecilic and against his political interests. If there were someone whose views he cared about, and who was actually willing to say, “Boss, if you do this, I’m quitting,” there wouldn’t be so much futility.