In the wake of Cassidy Hutchinson’s extraordinary testimony before the 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 the 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 again. Corrupting the trial compounded the underlying conduct which prompted the impeachment by helping sap the adjudication of its value—thus making prosecution arguably a more important mechanism for holding the president accountable. [Continue reading…]