Ellie Honig and friends have a podcast called Cafe Insider. It offers insights into current politics. In this free edition, the question is why Attorney General Merrick Garland is moving so slowly to prosecute the planners of the 1/6 insurrection, one of the biggest federal crimes in U.S. history.

Note From Elie: DOJ and The Cost of Getting There Second

By ELIE HONIG

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Cassidy Hutchinson is sworn in by the House Select Committee to Investigate the January 6th Attack on the US Capitol on June 28, 2022. (Photo by Stefani Reynolds / AFP)

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Dear Reader,

Cassidy Hutchinson is the perfect witness for a potential prosecution of Donald Trump. She had insider access as an aide to former White House Chief of Staff Mark Meadows; she was inside the West Wing during the frantic days leading up to January 6, and then as the Capitol attack went down that fateful afternoon, two years ago today. Her testimony is damning to Trump and others, and is corroborated in key respects by independent evidence. She is a compelling figure, at once likable, sympathetic, and believable. She is a prosecutor’s dream.

Also: Cassidy Hutchinson lied to federal investigators, under penalty of perjury.

This is not a matter of opinion or debate. It is a fact, openly admitted now by Hutchinson herself. And it’s not even Hutchinson’s fault, not entirely. I place much of the blame on Justice Department prosecutors who twiddled their thumbs for far too long and let themselves get beaten to the punch by the January 6 Committee. This is the cost of DOJ’s dilatory, meandering, hand-wringing approach to its investigation of the real power sources behind the coup attempt. This is the cost of getting there second.

During the first year-and-a-half or so after January 6, the Justice Department focused its prosecutorial efforts on the people who physically stormed the Capitol. Attorney General Merrick Garland vowed at his February 2021 confirmation hearing to “begin with the people on the ground and we work our way up.”

Of course, DOJ had to prosecute those who breached the Capitol and, for the most part, the feds have done an admirable job on these 900-plus cases.

The problem, however, was with Garland’s bureaucratic, bottom-up approach. Yes, prosecutors sometimes do start at ground level and work up the chain of command – but aggressive prosecutors know you don’t have to do it that way. In fact, circumstances sometimes give prosecutors a direct shot at the upper echelons of power, and there’s no reason to refrain from going after the bosses until after you’re done with the riff-raff. To put it in concrete terms: DOJ absolutely could have identified and talked to Hutchinson, Pat Cipollone, Marc Short, and other key White House insiders back in, say, mid-2021. The Justice Department has now spoken with all these folks, and other well-situated witnesses, but it didn’t get around to them until mid- to late-2022.

In the meantime, while DOJ was focused exclusively on the guys in face paint and rhino horns, the January 6 Committee – armed with less powerful investigative tools and resources– got to Hutchinson first. In February 2022 – before she gave her blockbuster, nationally broadcast testimony in June 2022 – she testified behind closed doors. The Committee asked Hutchinson whether she knew anything about a dispute on January 6 between Trump and Secret Service agents, who refused his command to take him to the Capitol. Hutchinson testified that she had heard of no such thing. At this point, Hutchinson was represented by a lawyer named Stefan Passantino, a former Trump White House ethics lawyer (yes: ethics) who was being paid by Trump’s “Save America” political action committee. (Put a pin in this; we’ll get back to Passantino in a bit).

This testimony by Hutchinson, given under penalty of perjury, was false. Months later, in June 2022, she testified publicly that she had heard that Trump had lashed out physically and verbally at Secret Service agents, at one point physically lunging for the steering wheel of the presidential SUV. In a subsequent deposition in September 2022, Hutchinson admitted that she had lied to the Committee the first time around. After her original false testimony, Hutchinson was racked with worry; she said to Passantino, “Stefan, I’m f****d. I just lied… I lied. I lied, I lied, I lied.” (That’s four “I lieds,” for those keeping count.)

There are perfectly understandable and defensible reasons why Hutchinson lied in her first deposition. As she later explained to the Committee, she was under enormous personal and financial pressure to hew to the party line and avoid testifying in any way that might harm Trump. According to Hutchinson, Passantino reinforced that perception, telling her that, “We just want to focus on protecting the President.” Worse, Hutchinson testified that when she told Passantino during prep sessions about the incident between Trump and the Secret Service, Passantino told her, “No, no, no, no, no… We don’t want to go there. We don’t want to talk about that.” (That’s five “nos,” for those keeping count.) Passantino said she could simply claim she did not recall, and there’s no way the Committee could know what she did or did not remember. Passantino contests Hutchinson’s account and starkly denies any wrongdoing.

While this was all going down, Garland was asleep at the wheel. When Hutchinson testified publicly in June 2022, federal prosecutors reportedly were “astonished” as they sat on their couches, watching on television along with the rest of us in the general public.

So here’s the problem now for DOJ (and the Fulton County DA). Hutchinson, as vital a witness as she is, is also damaged goods. She’s probably not fatally undermined but, make no mistake, defense lawyers will have a field day cross-examining her:

You lied to the Committee, didn’t you? (Yes)

You knew you were testifying to the United States House of Representatives, right? (I knew that)

And you knew you were testifying under penalty of perjury, right? (That’s right)

Just like you’re under penalty of perjury now at this trial? (Yes).

But you lied. (Correct)

You knew you could get prosecuted and go to federal prison if you lied, didn’t you? (I did)

Yet you lied, anyway. (Yes)

“I lied, I lied, I lied, I lied.” Those were your words. (Right)

By the way: you haven’t been prosecuted for perjury, have you? Even though you lied? (No, I haven’t)

These prosecutors did you a favor. They could have thrown you in prison, but they gave you a free pass, didn’t they? (Well, I guess I haven’t been charged with anything)

But you did commit perjury. (I suppose so)

Again: I find Hutchinson, on the whole, to be remarkably credible. I believe the substance of her testimony, and I believe that she lied only because of pressure applied by Passantino and others in Trumpworld. But there’s no denying it: this line of cross-examination will hurt.

Yes, Hutchinson has a plausible explanation why she originally lied to the Committee. I’ve seen plenty of witnesses in her situation, and it’s common and understandable for a person who feels financial or political or personal pressure to shade the truth. Prosecutors will surely make this argument if they ever call Hutchinson as a witness and need to rehabilitate her. But it’s an unforced error by DOJ. The Justice Department got beat to the punch, and now they needlessly have to fight a battle over Hutchinson’s credibility. By their inaction, Justice Department prosecutors have handed defense lawyers a gift.

Garland boosters sometimes argue: oh, but he is the humble tortoise, the slow but steady technician who lacks flash but wins the race in the end. Sounds reassuring, but this is apologist pablum. Speed absolutely matters. There’s a reason why prosecutors fight like mad to get to key witnesses first, and then protect them against having to testify in other settings: to prevent a Hutchinson-like scenario where, through no real fault of the witness herself, she winds up giving testimony that undermines her credibility down the line.

As I’ve noted many times in this space, prosecutors may still indict Trump, someday. But Garland’s own delay will make the ultimate job – securing a conviction – even more difficult than it needed to be.

Stay Informed,

Elie