Thread by @renato_mariotti

THREAD: What should we make of reports that Cassidy Hutchinson's testimony was a surprise to DOJ, and that DOJ leadership has rarely discussed Trump's criminal culpability?

1/ Today the New York Times published a report by @ktbenner and @GlennThrush that offers a rare peek behind the curtain at DOJ and how they have investigated the January 6th attack.

It's full of revelations and worth a read. nytimes.com/2022/07/11/us/…

2/ Perhaps the most interesting news is that Cassidy Hutchinson's testimony "jolted top Justice Department officials into discussing the topic of Mr. Trump more directly" creating "pressure ... to scrutinize Mr. Trump's potential criminal culpability" which they rarely discussed.

3/ Hutchinson's testimony was "largely new" to DOJ leadership and "grabbed their attention."

This reporting clearly indicates that DOJ's investigation has not reached Trump's inner circle and is not directly considering Trump's criminal liability at this point.

4/ The article also provides some important detail about what the DOJ *is* investigating, including Jeffrey Clark and the fake elector scheme. We also know publicly that the Clark investigation involves John Eastman, who was the subject of a search warrant.

5/ Prior to Hutchinson's testimony, I wrote that the crooked lawyers assisting Trump, like Clark and Eastman, could be the first major January 6th defendants because their activity could lead to straightforward charges that DOJ often prosecutes.
politico.com/news/magazine/…

6/ So I'm not surprised DOJ is further along investigating them than they are investigating Trump and his closest associates.

But my column was based on public knowledge, and I'm surprised that DOJ hasn't even investigated Trump's inner circle. They've let Congress go first.

7/ If the NYT reporting is correct, Congress is getting the first crack at the important witnesses that would be needed to establish a case against Trump.

That's not necessarily a bad thing, but it has some important implications for the criminal investigation.

8/ When I was a federal prosecutor, I conducted investigations in parallel with civil investigators at agencies like the SEC. That often meant that I let the civil investigators go first and stayed covert while they did their jobs.

Then I went second, and followed up.

9/ It sometimes meant that witnesses who might have taken the Fifth if criminal investigators approached them ended up testifying in the civil investigation, which helped a later criminal investigation.

Here, letting Congress go first also means more of the evidence is public.

10/ But the obvious downside is that Congress has a different agenda than the DOJ and lacks the powerful investigative tools that DOJ has, like search warrants, grand jury subpoenas, and wiretaps.

Congress may end up creating a record that complicates a later criminal case.

11/ All in all, there may be good reasons to let Congress go first. For no other reason, it ensures that the full record becomes public.

The publication of the Mueller report, setting forth wrongdoing in detail, is the exception -- not the norm.

12/ In most criminal investigations, all the public learns is what comes out in public filings or at trial. If no one is charged, the public learns nothing at all and the case is closed.

Here, it may actually be a good thing that Congress is getting the facts out first.

13/ But based on NYT's reporting, DOJ is not making a decision to hang back and let Congress go first as an investigative strategy.

Rather it appears, based on the article, that DOJ is reluctant to investigate -- or even discuss -- Trump's criminal liability.

14/ I have been critical of online speculation that charging Trump for his role on January 6th would be easy. Proving a case against Trump is much more difficult than many have led you to believe, and until Hutchinson's testimony, there wasn't enough public evidence to do so.

15/ But Mueller laid out extensive evidence in a public report and publicly testified that the evidence was sufficient to indict Trump after he left office.

Has DOJ not even considered whether charging him for those crimes would be in the public interest? We still do not know.

16/ After Biden defeated Trump, but before the attack on January 6th, I advocated (see below) for the appointment of a special counsel to investigate Trump's actions while in office and determine whether charges were warranted. politico.com/news/magazine/…

17/ I'm still convinced a special counsel would have been the right approach. Charging the previous president is a major and unprecedented step.

Public confidence that the process was not political in any way would be important.

A decision not to charge should be explained.

18/ There's nothing wrong with Garland and his team deciding to keep this decision for themselves. I would applaud them for exercising the restraint, great care, and prudence this issue merits.

But refusing to actively investigate and grapple with the matter cannot be defended.

19/ While Twitter commentators are not correct to assert that there is an obvious slam-dunk criminal case against Trump for his actions on January 6th, there has long been enough evidence in the public record to warrant opening an investigation into the matter.

20/ I can understand why DOJ officials may have had a healthy skepticism that an investigation would lead to criminal charges, and I can also understand that the mere existence of an investigation would be controversial, that controversy is not a proper reason not to investigate.

21/ Hutchinson's testimony establishes, at the very least, that Trump could face criminal incitement charges.

The fact of Trump's speech was never in dispute, and her testimony helps clear the otherwise insurmountable First Amendment hurdle.
politico.com/news/magazine/…

22/ It's possible DOJ would not want to take on the legal risk that could come with an incitement charge, since the current Supreme Court could find that the First Amendment protects Trump's speech.

But there's enough to warrant investigating the matter, at the very least.

23/ Criminal investigations are often slow, and at this pace, DOJ's investigation would take years to complete.

A careful investigation is understandable. But an aversion to considering Trump's criminal culpability is not.

24/ Some suggest that Trump should be charged to "save the Republic." Garland is right to reject those sorts of considerations.

But if you're going to do this by the book, as Garland claims he will do, then do it by the book. That means Trump doesn't get a free pass. /end