Cassidy Hutchinson Changes Everything

Tuesday’s testimony by Cassidy Hutchinson, an aide to Mark Meadows, the final chief of staff for President Donald Trump, snapped attention back to the Jan. 6 committee in a striking finale to the first stretch of the hearings, which are expected to resume in July.

Ms. Hutchinson’s testimony was certainly a surprise — delivering shocking and consequential revelations — but it has hardly been the only one. The hearings have been packed with them.

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Committee members said they wouldn’t play prosecutor before they started. That bit of misdirection has sharpened the surprise of what can plausibly be considered the committee’s prosecutorial approach against the former president.

The committee has repeatedly referred to criminal law and did so again with Ms. Hutchinson’s testimony. For example, she recounted an exchange with the White House counsel Pat Cipollone in which he urged her to make sure Mr. Trump did not go to the Capitol, worried that if he went, it might provoke “charges of every crime imaginable.”

In each hearing, the committee has skillfully built on a foundation of fact. It previously showed that Mr. Trump was informed repeatedly that he had lost the election; he was also told it could be illegal to attack the election results, but he did so anyhow. Whatever he believed about winning or losing an election, he could not lawfully conspire to find 11,780 votes that did not exist, counterfeit electoral certificates or trigger violence. Indeed, previous hearings focused on and bolstered cases for two possible crimes: solicitation of election fraud (in a Georgia state case) and conspiracy to fabricate electoral certificates (which federal authorities seem to be pursuing).

We already knew that Mr. Trump refused to act for 187 minutes to disperse the mob. With Ms. Hutchinson’s testimony, we heard more evidence that he spurred the mob to attack Vice President Mike Pence. (As rioters stormed the Capitol, Mr. Trump tweeted that Mr. Pence “didn’t have the courage to do what should have been done to protect our Country and our Constitution.”)

She provided new information about several threats of violence in the days before Jan. 6. The Secret Service warned of them, and they were discussed in the White House. Ms. Hutchinson testified that she was “in the vicinity of a conversation” she overheard in which Mr. Trump said that he didn’t “care that they have weapons. They’re not here to hurt me. Take the f-ing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the f-ing mags away.” (Mags, or magnetometers or metal detectors, were being used to screen attendees for weapons before entering the Jan. 6 rally near the White House.)

She corroborated reports of Mr. Trump’s animus toward his vice president during the riot. Ms. Hutchinson recalled a conversation about Mr. Trump between Mr. Cipollone and Mr. Meadows: “I remember Pat saying something to the effect of, ‘Mark, we need to do something more. They’re literally calling for the vice president to be f-ing hung.’ And Mark had responded something to the effect of, ‘You heard him, Pat, he thinks Mike deserves it. He doesn’t think they’re doing anything wrong.’ To which Pat said something like, ‘This is f-ing crazy.’”

Is there sufficient evidence for a seditious conspiracy criminal case related to Mr. Trump’s actions and inaction on Jan. 6, like those brought against the Proud Boys, Oath Keepers and their leaders? The evidence is powerful but is not yet sufficient to overcome the very high bar of proving, beyond a reasonable doubt, that Mr. Trump agreed with the rioters to attack the Capitol. But the new testimony advances proving other possible crimes, like obstruction of Congress, with Mr. Trump’s role in the violence as the culmination of that scheme.

An insurrectionist?

The accumulated evidence, capped by Ms. Hutchison’s testimony, will again raise another possible legal obstacle for Mr. Trump: disqualification from any future federal office under Section 3 of the 14th Amendment. Known as the disqualification clause, the provision applies to anyone who took an oath to support the Constitution and then “engaged in insurrection or rebellion” against the United States or gave “aid or comfort to the enemies thereof.”

We have seen this challenge against others — like Representatives Marjorie Taylor Greene of Georgia and Madison Cawthorn of North Carolina — who were accused of insurrection. Triggering 14th Amendment challenges against Mr. Trump will be as simple as voters petitioning election officials in any state where he seeks to run to exclude him from the primary or general election ballot on the ground that he is constitutionally barred because of his role in the insurrection. As with the Greene and Cawthorn cases, the challenges would surely wind up in court. Ms. Greene and Mr. Cawthorn were both allowed to run for office, but the cases established important precedents, including the willingness of election officials and courts to consider the issue.

Moreover, those cases didn’t have this amount of evidence, and there is likely more to come. The effort to bar Mr. Trump from running will be bolstered if the committee formally determines in its final report that he was an insurrectionist under the 14th Amendment, even more so if those findings are adopted by the full House.

Scholars have disagreed about how and in what scenarios Section 3 applies. For example, some point to an antebellum case to suggest that it cannot be carried out without congressional legislation. Other experts argue that there is no such requirement. After Tuesday, it seems likely that these and many other questions will be worked out by the courts.

Cliffhangers and villains

Each hearing has saved a surprise for the end. Last Thursday’s, for example, ended with the revelations that six members of Congress had sought presidential pardons. On Tuesday it was screenshots, presented by Representative Liz Cheney, of messages presumably from supporters of Mr. Trump to witnesses, insinuating that Mr. Trump was watching and “does read transcripts” and “knows you’re loyal.” They showed possible witness tampering and potential obstruction of justice.

The hearings have very gradually introduced villains, first focusing on Mr. Trump, then on legal helpers for his attempted coup, John Eastman and Jeffrey Clark. On Tuesday we met a fourth, Mr. Meadows. That is part of how the committee has been so shrewd; it has slowly expanded the cast of characters.

Perhaps the biggest surprise of all is that the hearings seem to be having an impact. That is what polls suggest: In one, three-quarters of voters had heard or read about the investigation, and 60 percent supported it, including a third of Republicans. In another, 58 percent of Americans believed that the former president should be charged with crimes related to his actions on and before Jan. 6. That’s up six percentage points from before the hearings started, and includes almost 20 percent of Republicans.

Perhaps it’s because the hearings have captured the spirit of the moment. Just as the Watergate hearings, the 9/11 Commission hearings and other congressional proceedings were artifacts of their time, these hearings have been structured to fit neatly into our streaming era. Think of it as TikTok Watergate. Ms. Hutchinson just became the face of it.

NormanEisen served as special counsel to the House Judiciary Committee during the first impeachment of Donald Trump.

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