Renato Mariotti Profile picture
Jun 28, 2022 19 tweets 4 min read Twitter logo Read on Twitter
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.…
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.…
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

• • •

Missing some Tweet in this thread? You can try to force a refresh

Keep Current with Renato Mariotti

Renato Mariotti Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!


Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @renato_mariotti

Nov 6
1/ Donald Trump’s testimony today is not moving forward a purely legal strategy.

His legal team’s strategy was always defensive and focused on limiting liability elsewhere, which is why he took the Fifth hundreds of times in his deposition.
2/ You don’t frequently take the Fifth in a civil case if you plan to win.

Trump’s team likely saw the need to essentially concede defeat here and mitigate collateral damage coming from a loss.

But Trump’s ego has forced a change in strategy. But it’s not a *legal* strategy.
3/ You don’t attack the judge constantly if you want to win the trial.

The primary focus today is about PR/spin/politics. Trump wants to convince his followers that the trial is rigged and that he’s a victim, not a fraudster.

Secondarily, he’s trying to provoke the judge.
Read 5 tweets
Jul 26
THREAD: Why did the Hunter Biden plea deal fall apart?
1/ Earlier today, during a hearing when Hunter Biden was expected to plead guilty, the plea deal was scuttled after the judge asked whether he would be immune from prosecution for other possible crimes as a result of the deal.…
2/ After prosecutors said that it would not do so, Hunter Biden’s lawyers said that the deal was off.

Why did they do that?

To borrow the name of my podcast with @AshaRangappa_, it’s complicated.
Read 12 tweets
Jul 19
1/ The Michigan AG’s charges against fake electors are more important than you might realize.

Our electoral system is run at the state level, and as we saw in the last election, there is room for bad actors to get to subvert the process.

These charges will be a real deterrent.
2/ Remember that the “fake electors” aren’t billionaires. They’re not raising money off of these criminal charges. These charges won’t lead to fortune or fame.

They’re GOP party operatives who will be devastated by an indictment like a typical person is.
3/ Getting indicted isn’t fun. It is a stressful, costly, and humiliating experience.

Just like the charges of individual January 6th insurrectionists, these charges may deter foot soldiers who would consider joining an effort to overturn the *next* election.
Read 4 tweets
Jul 13
THREAD: What should we make of today's Ripple #XRP decision?
1/ Earlier this afternoon, federal judge Analisa Torres issued a long-awaited decision in SEC v. Ripple, a case brought by the Securities and Exchange Commission against Ripple Labs, a company that issues a token called #XRP.

Why should you care about this decision?
2/ Right now, the U.S. has no established regulatory framework for crypto. Other countries, like the UK, are working to create new, comprehensive regulatory regimes.

In the U.S., Congress hasn't done that, so the courts have to sort this out using existing law.
Read 10 tweets
Jun 5
THREAD: What should we make of the meeting between Trump’s legal team and federal prosecutors?
1/ Today CBS News and other outlets reported that Trump’s legal team met with DOJ prosecutors regarding the Mar-a-Lago case, which is close to a potential indictment.

Notably the meeting did not involve the Attorney General or Deputy AG, but involved others at DOJ.
2/ This sort of meeting shortly before indictment (often called a “pitch meeting”) is commonplace.

In the office I worked at, the U.S. Attorney’s Office in Chicago, *every* defense counsel in every case was afforded the opportunity to “pitch” as a matter of policy.
Read 11 tweets
Mar 22
THREAD: What should we make of news that Donald Trump deliberately misled his own attorneys regarding classified documents?
1/ Today ABC News described the evidence that DOJ presented to Judge Beryl Howell that led to her recent ruling that the crime-fraud exception applied to otherwise privileged communications between Trump and his attorneys.
2/ Specifically, the Judge found that Special Counsel Jack Smith presented compelling preliminary evidence that Trump "knowingly and deliberately misled his own attorneys" about his retention of classified materials after leaving office.
Read 16 tweets

Did Thread Reader help you today?

Support us! We are indie developers!

This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Don't want to be a Premium member but still want to support us?

Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal

Or Donate anonymously using crypto!


0xfe58350B80634f60Fa6Dc149a72b4DFbc17D341E copy


3ATGMxNzCUFzxpMCHL5sWSt4DVtS8UqXpi copy

Thank you for your support!

Follow Us on Twitter!