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Testimony from Meadows aide opens criminal exposure for Trump

Legal experts say the new revelations could move the dial on criminal investigations embroiling the former president.

WASHINGTON (CN) — Before he got on a stage in front supporters at the Ellipse on Jan. 6 to insist against all available evidence that Democrats had robbed him of a second term, President Donald Trump knew the day could turn violent.

The House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol summoned former White House aide Cassidy Hutchinson to testify Tuesday about a few of the warnings given to the outgoing commander in chief. As the dust from Hutchinson's explosive testimony settles, legal experts say it represents the strongest evidence yet of Trump's culpability in last year's deadly attack.

Hutchinson served at the time as top aide to Trump’s chief of staff Mark Meadows, a role that positioned her to speak daily with a wide range of officials in the Trump White House as well as members of Congress.

"Before yesterday, I think Trump had some deniability. He could have said, ‘Well, I just thought it was a protest that got out of control.’ We now know that that just isn’t the case. He knew about it. He knew people were armed. He wanted to remove metal detectors and wanted armed people in this crowd and wanted them to go to the Capitol," Brendan Beery, a constitutional law professor at Western Michigan University’s Thomas M. Cooley Law School, said in an interview.

As Hutchinson recalled in her testimony to lawmakers, Trump ushered his supporters into the seat of the American government despite knowing that they were armed because he was miffed that attendance at his rally was not at capacity.

There were security devices called magnetometers in place at Trump's rally to keep weapons out, and Trump was unconcerned that people were trying to get through these checkpoints with guns, bear spray, knives and brass knuckles.

“I don’t effing care that they have weapons. They are not here to hurt me. Take the effing mags away. Let my people in. They can march to the Capitol from here," Trump said, according to Hutchinson. He then proceeded to give a speech claiming the election was stolen and urging his supporters, some of whom he knew were armed, to "fight like hell," or risk losing their country.

While it is ultimately up to the Department of Justice, not the Jan. 6 committee, to make decisions about criminal charges, legal experts say Tuesday's testimony ramps up the possibility that a former president could face criminal prosecution for the first time in history.

One potential charge that Trump could face is conspiracy to obstruct an official proceeding by attempting to prevent the certification of the Electoral College votes. Another is conspiracy to defraud the United States by disseminating election lies he knew were false.

Several experts said Hutchinson's testimony could strengthen the case for Trump facing other charges of inciting a riot or seditious conspiracy.

Shanlon Wu, a legal analyst and former federal prosecutor, said Hutchinson's testimony gave greater credence to a potential seditious conspiracy case against Trump.

Seditious conspiracy requires proof that two or more people conspired to use force to “prevent, hinder, or delay the execution of any law of the United States."

"He's saying, 'These are my people, they're not going to hurt me,' and he wants to literally lead them to the Capitol. That is a very critical piece in terms of looking at whether he was intending a violent overthrow, that's the piece that's been missing," Wu said in an interview.

Hutchinson testified to the committee that former White House counsel Pat Cipillone was concerned prior to Jan. 6 about potential criminal charges, including incitement of an insurrection, if Trump followed through on his plan to lead rallygoers on a march to the Capitol while Congress certified the results of the 2020 election.

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“Please make sure we don’t go up to the Capitol, Cassidy. We’re going to get charged with every crime imaginable,” she said Cipollone told her.

According to Hutchinson’s testimony, Cipollone was worried about Trump and administration officials being charged with violating the Electoral Count Act, obstructing justice and incitement of a riot.

"That's extremely significant coming from the White House counsel himself," Wu said. "Now, he did condition that on 'if we do this movement,' meaning if they go to the Hill, and the president and Hutchinson did not go to the Hill. But it's that awareness I think that really brings it home, that there is the criminal exposure, and he's basically saying it out loud."

This exhibit from video released by the House Select Committee on June 28, 2022, shows a photo of former President Donald Trump talking to his chief of staff Mark Meadows before Trump spoke at the rally on the Ellipse on Jan 6. (House Select Committee via AP)

Not all experts are confident, however, that Tuesday's revelations will perk up the ears of DOJ.

"I still don't know that we have any evidence to suggest that Trump knew they would breach the Capitol in advance," said Barbara McQuade, law professor at the University of Michigan and a former U.S. attorney, noting that the key to a seditious conspiracy case is proof that Trump planned to use force.

In order to charge Trump with incitement of an insurrection, prosecutors would both have to prove that Trump meant for the rioters not just to protest the certification of the Jan. 6 hearing but to commit a crime, such as breaking into the Capitol, while doing so.

McQuade said proving incitement would be a difficult case, one that remains unlikely even with the weight of Hutchinson's testimony.

"I just don't ever see the Justice Department charged with inciting an insurrection," McQuade said. "It is so closely aligned with protected speech; you have to show that a person intended to incite the crowd, and that he knew that that was likely to happen. I suppose the knowledge that the crowd is armed does contribute to that, but I think an alternative explanation is it just shows how reckless he was."

For McQuade, conspiracy to obstruct an official proceeding and conspiracy to defraud the United States remain the most plausible criminal cases against Trump.

Back in March, a federal judge determined it was "more likely than not" that Trump committed federal crimes when he attempted to overturn the 2020 election results.

"The political question is: Does the Department of Justice indict a former president? I can understand the arguments against it. We don't want to get into this habit," Beery said. "But I think we've reached the point where the Department of Justice might be saying that the risk of those optics are outweighed by the risk of allowing somebody to actually attempt to overthrow the United States government."

The mounting evidence coming out of the Jan. 6 committee is putting added pressure on the Department of Justice, which has faced criticism over the past year for not bringing a criminal case against Trump.

"I think that it is growing now because there's more very specific evidence about [Trump's] state of mind, and I think that's probably what has been giving Merrick Garland the most pause," Wu said. "This concept of prosecutorial discretion, it's really important for people to understand. Just because there's evidence in the case doesn't mean prosecutors are required to or automatically bring it. In exercising that discretion, he's weighing a lot of things. He's weighing his role in history, he's weighing is this going to be bad for the department."

Cedric Powell, a law professor at the University of Louisville, said that Attorney General Merrick Garland is facing a tricky task amid the Jan. 6 committee's investigative findings.

“Going through that laundry list of criminal activity, the Justice Department will have to be very careful about what it decides to charge. I think that is what the hesitancy is. This is high stakes. Can you imagine if they brought a charge against the former president, and he wins, either by being acquitted or winning on appeal?" Powell said in an interview.

While the stakes for a criminal case against a former president would be high, Beery warned much would also be at stake if Trump is never criminally charged.

"It would be really incredible if Donald Trump could behave the way he behaved and never be held accountable for his entire life. I think that would send a real message that if you maintain plausible deniability — if you don't put any of your plans in writing, you don't use an email, you surround yourself with people who are loyal to you — that you can get away with anything, including trying to end the American experiment," Beery said. "The message that would send would be chilling to me, but that doesn't mean I think he will be held accountable. I’ll believe that when I see it."

Hutchinson's testimony also laid potential groundwork for criminal cases against other Trump officials, particularly her boss, Meadows, who was Trump's chief of staff.

The former aide described Meadows as having "a lack of a reaction" when he heard about violence at the Capitol on Jan. 6.

"He wanted a pardon, and now I know why he probably needed one," Beery said. "He had forewarning about it. He knew about it. He did nothing to try to prevent it.”

Hutchinson testified that Meadows was warned ahead of time that the rally could turn violent and said her boss told her four days before the insurrection: “Things might get real, real bad on Jan. 6.”

Beery said Meadows' knowledge of potential violence on Jan. 6, and knowledge of armed rallygoers could open him up to conspiracy charges.

“Conspiracy is a game you don't want to play because it's not that hard to get into a conspiracy. A conspiracy is not a written agreement to commit a crime; it can be a wink and a nod," Beery said. "When you put Mark Meadows in a situation where he knew that these people were there, he knew what they were there to do and he was part of the team that allowed it to happen, you're only a very short step away from conspiracy.”

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