THREAD: What is the legal significance of Cassidy Hutchinson’s testimony? Does it make a prosecution of Trump more likely?
1/ Anyone who has paid attention during the Trump presidency knows that “explosive” revelations don’t always mean that legal consequences will follow.
But Hutchinson’s testimony actually moved the ball forward significantly towards a potential DOJ prosecution of Trump.
2/ Each of the potential crimes that DOJ could charge has its own “elements,” which DOJ would be required to prove beyond a reasonable doubt to make a case.
Up until today, the most damning evidence has been of the actions of the crooked lawyers advising Trump, like Eastman.
3/ I’ve previously written that they are the “weak link” for Trump because they made false statements and face potential charges connected to those false statements.
DOJ often charges false statements and they are straightforward cases to prove. politico.com/amp/news/magaz…
4/ We did hear some testimony today that could bolster a case against Giuliani. But what makes today’s testimony different is that it included damning testimony that gives us a window into Trump’s state of mind that would be admissible in court against Trump.
5/ As I’ve explained previously (below), it could be difficult to prove beyond a reasonable doubt that Trump had the “corrupt” state of mind needed to convict him of obstructing an official proceeding. politico.com/amp/news/magaz…
6/ In addition, a prosecution of Trump for inciting violence would face a serious First Amendment hurdle.
The Supreme Court has long held that only incitement to *imminent unlawful action* is sufficient. The speaker had to know that the crowd would immediately break the law.
7/ Courts have routinely set this bar very high in the context of political speech because the First Amendment broadly protects speech of that type.
A political statement by the President of the United States would be presumptively protected by the First Amendment.
8/ Testimony that Trump said he didn’t “f-ing care that they have weapons. They’re not here to hurt me” and that they would be going to the Capitol later is precisely the sort of “smoking gun” evidence needed to prove that the person speaking meant to incite imminent violence.
9/ The DOJ will understandably be concerned that the Supreme Court (particularly the current court) would find that Trump's speech was constitutionally protected by the First Amendment. But this evidence should be enough to make them consider an incitement prosecution.
10/ And to be clear, because there has been some misinformation on this point, Hutchinson's testimony *would not* be hearsay if offered by the DOJ at court against Trump.
Statements by a "party opponent" are non hearsay pursuant to Federal Rule of Evidence 801(d)(2).
11/ (Trump would be the DOJ's "party opponent" in a criminal prosecution of Trump.")
Today's hearing also provided testimony that gets DOJ closer to what they would need to prosecute Trump for obstructing an official proceeding. That charge requires "corrupt" intent.
12/ One of the most shocking revelations by Hutchinson today was her testimony that Trump tried to grab the steering wheel when Secret Service agents refused to take him to the Capitol.
Has failed attempt to go to the Capitol, in itself, likely wouldn't be an offense.
13/ But the "wrestling the steering wheel" episode would be powerful evidence of Trump's intent.
Up until now, the picture that emerged of Trump was of someone who engaged in **inaction** while the Capitol was under attack. In itself, that is dereliction of duty, not a crime.
14/ But episodes like wrestling the steering wheel show that Trump **wanted** to be at the Capitol and would have been have been there if he wasn't kept from doing so. He wanted to be there, hands on, for the attack itself.
That sheds a powerful light on his state of mind.
15/ Juries are typically instructed to infer a defendant's state of mind from his words and actions. In this situation, Trump's actions spoke louder than words.
That would be evidence of Trump's state of mind when he engaged in earlier actions.
16/ Prosecutors will still need to put together a case that shows that Trump was involved in a conspiracy or scheme that obstructed the January 6th Senate proceeding. That's not the cakewalk that many on Twitter would have you believe. But it's easier than establishing intent.
17/ Hutchison's testimony is a game changer. Until now, what I saw was potential narrow criminal charges against crooked lawyers. Now it looks like an (otherwise unlikely) incitement prosecution is possible, and there may be the "smoking gun" needed for an obstruction charge.
18/ The committee was smart to lock in public testimony from Hutchinson when they had the chance, given the (potentially unlawful) pressure against her to change her tune.
They have to hope that others follow in her footsteps. But they already have much of what they need. /end
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