Published by The Lawfare Institute
in Cooperation With
In the wake of Cassidy Hutchinson’s extraordinary testimony before the House Jan. 6 select committee, a number of commentators have been considering how her account will and should affect judgments about the merits of any potential criminal prosecution of the former president. A preliminary question for prosecutors concerns the strength of the evidence of the president’s criminal intent as it affects the application of the relevant statutes, such as obstruction of a congressional proceeding or seditious conspiracy. Hutchinson’s testimony in a number of respects bears on this issue of mens rea.
But Hutchinson’s testimony carries other importance as well, both for prosecutors and institutionally for Congress—particularly for the Senate. Specifically, the light that the Jan. 6 hearings, and Hutchinson’s testimony in particular, have shed on Donald Trump’s response to the 2021 impeachment process warrants attention.
These hearings show that Trump, through his lawyers, lied to Congress about the events of Jan. 6 in his second impeachment trial in denying that the then-president had meant to spark violence. In so doing, he undermined the constitutional process of impeachment—as well as the peaceful transition of power.
In determining whether to bring charges, prosecutors have to assess not merely the quality of the evidence against Trump but also the national interest in a prosecution of the former president. Trump’s lies in the impeachment process should properly figure into prosecutors’ deliberations on this point. After all, this was the constitutional proceeding by which he was supposed to be held accountable, and a conviction would have included a Senate judgment of his ineligibility to ever again seek office. Corrupting the trial compounded the underlying conduct that prompted the impeachment by helping to sap the adjudication of its value—thus making prosecution arguably a more important mechanism for holding the president accountable.
What’s more, the hearings should prompt long overdue consideration of the processes by which Congress exercises its power to impeach and try presidents. Since 1974, it has been reluctant to conduct independent fact-finding. In the process affecting Bill Clinton, the House conducted virtually no independent factual inquiry, relying fatally on the independent counsel record compiled by Kenneth Starr. The Senate then did the minimum in the trial, conducting only three depositions. While the House conducted a substantial investigation in the first Trump impeachment trial, the Senate relied solely on House evidence and, though significant questions remained unanswered, passed on conducting any factual inquiry of its own.
In the second impeachment, concerning the events of Jan. 6, neither house did much investigation. The House faced time pressures in acting on a schedule that would allow for the Senate to vote on removal from office, but once Trump’s tenure ended on the constitutionally prescribed day and time, the Senate had more time in which to call witnesses. Yet it nonetheless declined to do so.
In this last case, the result was that people like Hutchinson were never called to testify, putting an enormous amount of weight on the select committee’s investigation more than a year later. A significant percentage of the revelations that have emerged through the committee’s investigation would have surfaced in a reasonable trial. In other words, that Trump’s lies to the Senate were not exposed in real time is largely a function of the Senate having chosen not to develop any independent factual record.
Trump’s defense in the second impeachment trial was not purely legal. Yes, a number of senators opposed to his conviction gave as their reason that this constitutional remedy is not available against a private citizen: the former president who has left office. They also expressed unease that the process would only serve as the vehicle for barring Trump, upon impeachment, from running for the presidency in the future. At least from the perspective of the president’s supporters, Congress would then be involved in a political power play without precedent in constitutional history. They also contended that Trump’s Jan. 6 rally speech did not constitute incitement as a matter of law.
But the president’s lawyers did not defend Trump only on these constitutional grounds. They argued his innocence in more sweeping, factual terms, and this choice requires some examination of these claims in retrospect.
Trump’s lawyers asserted, for example, that the former president had no intention of inciting a riot or unleashing an angry mob on the Capitol to intimidate in its conduct of these duties.
Consider the closing argument delivered by his counsel, Michael van der Veen:
- “[Trump’s] entire premise was that the proceedings of the Congress should continue.”
- “Mr. Trump did not spend the weeks prior to January 6 inciting violence, he spent those weeks pursuing his election challenge to the court system and other legal proceedings exactly as the Constitution and the Congress prescribe” (emphasis added).
- “[T]he gathering of January 6 was supposed to be an entirely peaceful event.”
- “All of us, starting with my client, are deeply disturbed by the graphic videos of the Capitol attack that have been shown in recent days. The entire team condemned and have repeatedly condemned the violence and law breaking that occurred on January 6 in the strongest possible terms. We have advocated that everybody be found and punished to the maximum extent of the law.”
At one point, on Feb. 12, van der Veen was asked by Sens. Susan Collins and Mitt Romney: “When Trump sent the disparaging tweet at 2:24 p.m. regarding Pence, was he aware that the Secret Service had removed Pence from the Senate chamber for his safety?” He responded: “The answer is no. At no point was the president informed the vice president was in any danger.”
He later stated, “Mr. Trump and Mr. Pence have had a very good relationship for a long time, and I am sure Mr. Trump very much is concerned and was concerned for the safety and well-being of Mr. Pence and everybody else who was over here.”
Another one of Trump’s attorneys, Bruce Castor, declared, “The president did not cause the riots. He neither explicitly or implicitly encouraged the use of violence or lawless action[.]”
All this was false. And it was not, importantly, falsity of the kind often tolerated in lawyers who “spin” the facts well or crudely but within the conventions of the craft. It was flat-out false. The president’s entire premise was emphatically not that the proceedings of Congress should continue. He tried in innumerable ways to stop those proceedings, according to testimony from aides to Vice President Mike Pence, former senior Justice Department officials, and White House aides like Hutchinson.
Indeed, the testimony before the Jan. 6 committee reflects the president’s active encouragement of the attack on the Capitol, including waiving any requirement that his supporters be screened for weapons at the rally site and before they headed to the Capitol. According to the Hutchinson testimony, Trump’s chief of staff expected that things would “get real, real bad,” and the president’s refusal to intervene and call off the mob when apprised of the threats against the vice president in particular, and more generally, the spreading violence, are all of a piece.
The event was not “supposed to be entirely peaceful,” and it is not true that Trump “[spent the] weeks [prior to January 6] pursuing his election challenge to the court system and the other legal proceedings exactly as the Constitution and the Congress prescribe.” He spent those weeks leaning on state legislators to overturn their own results and state officials to lie about the vote counts in their states. It is also not true that he was concerned for Pence’s well-being or that he was disturbed by the attacks, according to Hutchinson.
A skeptic might argue Trump had no obligation to refrain from falsehoods in his impeachment defense. And Congress, such a skeptic might suggest, took the willing risk of getting lied to when it initiated an impeachment process without taking the time to develop a factual record. It was, then, on Congress to make its case and to catch the president at his lies.
There is an important element of truth to this claim—one we shall address momentarily. That said, the public is entitled to expect that in mounting a defense in the constitutional process of impeachment, presidents—even former presidents—have a higher obligation than assumed by other types of “defendants.” The president swore an oath faithfully to execute the office and to preserve and protect the Constitution, including the constitutional process of impeachment. To the extent Trump wants to contend that he had no obligation to honor this oath, because he was no longer in office or because #lolnothingmatters, surely that is a legitimate prudential factor for criminal prosecutors to take into account when they consider prosecution for the crimes the impeachment was intended to adjudicate.
It is also a reasonable ground on which prosecutors might reject any defense that the criminal process is somehow inappropriate because Trump was already “tried” for Jan. 6-related charges in the impeachment process and acquitted. It cannot be the case that a president can induce an acquittal (or improve its likelihood) through systematic misrepresentations to the Senate and then rest a process-based defense against criminal prosecution on this ill-gotten outcome.
To be sure, the president did not, of course, directly lie to Congress; he did not appear before the Congress. And these are not the kind of lies in any event that prosecutors would charge. Rather, he authorized or led his lawyers to lie, which they then did, either wittingly or unwittingly on his behalf.
But there can be no question that Trump undermined this congressional proceeding, just as he sought to disrupt the Jan. 6 final vote count for the presidency. He could have rested his defense on constitutional grounds alone; he might have stood his ground on a purely legal defense against incitement involved in the Jan. 6 rally speech. Nothing required him to falsely proclaim his innocence of any attempt to use violent or other means to disrupt the congressional proceedings.
Our hypothetical skeptic would be correct on one key point: Congress did make the choice not to use the impeachment as a venue to conduct a wider-ranging probe of Trump’s conduct during the postelection period and it is accountable for that decision. The House’s decision to pass an article of impeachment without investigating first may have been defensible on grounds that the record, though incomplete, was perfectly adequate to issue charges. The Senate, however, elected not to examine the evidence behind the charge the House sent its way.
The Constitution requires that when sitting as a court of impeachment, senators “shall be on Oath or Affirmation.” The text of that specialized oath, spelled out in the Senate’s impeachment rules, required that each senator affirm the following: “I solemnly swear ... that in all things appertaining to the trial of the impeachment of Donald John Trump, now pending, I will do impartial justice according to the Constitution and laws: so help me God.”
Having thus sworn, the members of the Senate could reasonably be understood to have had some obligation to look into the kind of facts that the Jan. 6 committee has since unearthed. Even if we assume that House impeachment managers wouldn’t have known to call Hutchinson, who wasn’t on anyone’s radar screen at the time, the story of the attempted palace coup at the Justice Department had already broken. So had the story of Trump’s call to Georgia Secretary of State Brad Raffensperger and the harassment of state legislators.
It is true that at the time, public attention was focused on the Jan. 6 rally speech and whether the words Trump spoke then constituted incitement. But the article of impeachment the Senate considered read more broadly. It referred to conduct other than the speech on Jan. 6—both the lies about the stolen election and specific steps taken to reverse results, as in Georgia where Trump sought to pressure the secretary of state in a famously taped conversation into finding the 11,000 votes that he needed. While the speech on Jan. 6 was the centerpiece of the article, the impeachable offense was the attack on the electoral process, culminating in the events of Jan. 6—which also explains why Trump’s counsel went to some length not only to dissect the words of Trump’s rally speech but also to disclaim any intention to upend the process beyond “what the Constitution and the Congress prescribe.” This was more than sufficient to justify Senate inquiry into other events of which the Jan. 6 speech was a part, not the whole.
A final question to be addressed about the Senate’s choice is the inevitably political judgment it faced: how long to expend on proceedings on Trump’s misconduct as a new administration took control and began to grapple with the major issues on its agenda, including the ongoing public health issues facing the country. This no doubt weighed heavily in how Democrats viewed the trade-offs, and Republicans would have additional reasons for moving the national conversation away from Trump’s presidency. A more full-blown factual inquiry might have tried public patience and impeded the achievement of other legitimate policy goals.
There was, however, a middle ground on the extent of fact-finding, something between “none” and “all possible.” We now know that there were former Trump administration officials open to offering valuable information about the events leading up to Jan. 6. At least a few of the known key witnesses, such as senior staff to the vice president, could have been deposed, and their testimony would have helped identify others. The Justice Department officials were also all available. It may have been politically unwise and institutionally difficult for the Senate to launch a trial on the order of the Watergate investigation. Some testimony now known to have been available, however, would have been accessible and could not have failed to have a major impact, even if it might not have changed the outcome.
In judging what the national interest demands, prosecutors will consider a wide range of factors. One is certainly the larger constitutional question of presidential accountability. Presidents enjoy legal immunity while in office, and then after they leave, many commentators express prudential reservations about the risks of one president’s administration proceeding criminally against its predecessor. It’s a kind of constitutional Catch-22. In office, the president is protected by the law; out of office, the president gets at least the benefit of the doubt, by the operation of what might be deemed a “norm” protecting the nation from rounds of politically inspired legal retribution.
Whatever one thinks of the norm in general terms, in this case, we should evaluate its power with all circumstances taken into account. In particular, the conduct reflected in the Jan. 6 testimony is egregious, far worse than most people supposed and very different from what supporters have offered in Trump’s defense. The evidence for what happened on Jan. 6 surfaced only gradually in part because Trump misled Congress and in part because it chose not to look beyond the Jan. 6 rally during the impeachment process.
Trump further compounded the problem of the constitutional Catch-22 involved in a president’s legal immunity while in office and the appeal to “norms” against prosecution when their term ends. In the 2021 impeachment, as in the first one, Trump argued that impeachment was improper in the absence of evidence that he violated the law. But he then lied to Congress about these Jan. 6-related actions and corrupted a trial record that was left without the evidence of potentially illegal conduct.
Whether the availability of this evidence in a Senate trial would have changed votes is unknowable. What we do know is that on this occasion, as in the planning for Jan. 6 itself, the president exhibited a contempt for Congress and its constitutional role that ought to inflect prosecutorial thinking about the prudential aspects of the decision before them. By lying to Congress, he undermined the ability of the tribunal to proceed on the basis of the truth. In weighing the national interest factors at issue in this complex prosecutorial decision, prosecutors cannot fail to take this conduct into account and certainly disregard any attempt to offer the defense of a prior “acquittal.”