Last night, we posted my column on yesterday’s spellbinding testimony by Cassidy Hutchinson, formerly a top aide to Trump White House chief of staff Mark Meadows, before the House select January 6 committee.
I don’t mean to be a broken record on this, but every time a strong witness appears in these sessions, it becomes more obvious how much Speaker Nancy Pelosi and House Democrats have undermined the value of the committee by failing to adhere to minimal due-process standards — permitting cross-examination and perspectives other than the committee members’ monochromatic abhorrence of the former president. Democrats have characteristically chosen iron-fisted control of the political narrative over the integrity of the fact-finding process. Their choice is gratuitously self-destructive: The Democrats had nothing to fear from cross-examination; these witnesses would easily have handled it, and good witnesses usually get stronger on cross; it would have made the hearings more interesting to the public; and the committee would have enjoyed broader public acceptance. Pelosi, instead, gave her opposition, and Trump, a good excuse to dismiss the whole exercise as rigged.
That said, there is a big difference between (a) observing that a fact-finding process is deeply flawed and (b) concluding that it should be ignored. I addressed this point in the column:
Now, it is all well and good to remind everyone, again, that the January 6 committee has foolishly undermined its credibility by failing to provide a fair process. No, there was no cross-examination of Hutchinson. Maybe it will turn out that — as Trump’s characteristically indecorous social-media outbursts during the testimony suggested — Hutchinson is a “total phony,” a “leaker” and “bad news” . . . although she has worked for many top Republicans, is well-liked by many more, and appears to have continued getting promoted over the years because she does a good job.
We should understand, in any event, that what [Congresswoman Liz Cheney, who handled the questioning,] did with Hutchinson Tuesday is what prosecutors do with witnesses in grand juries every day: drawing out the witness’s testimony with no obligation to provide the defense perspective. To be sure, no one gets convicted at the grand-jury stage, but an awful lot of people get indicted this way, and on far less evidence than the country heard [in Tuesday’s hearing].
Moreover, when we say the committee lacks due-process legitimacy, that means it lacks legitimacy as an ultimate finder of fact. It does not mean that we can blithely dismiss any evidence the committee discloses. It does not mean that, because we’d prefer that the evidence not be true, we can dismiss it out of hand because we don’t like the Democrats or the committee process. These witnesses are testifying under oath. There is significant risk to them if they are found to have committed perjury.
For now, all we can responsibly do is ask ourselves whether the evidence presented under these deficient procedures seems coherent and credible. Whether it will ultimately hold up when finally challenged — as it very well may be in, say, an eventual criminal trial — is another story. I’ll just say this: When I was a prosecutor, I obtained very good information from sources that were a lot more suspect than the January 6 committee — terrorists, hitmen, fraudsters. Yes, I still had to prove it in court, in the crucible of adversarial challenge and cross-examination. On the other hand, I wouldn’t have elicited it in court unless I had first been convinced that it was true.