How Hutchinson Converted Skeptics To Thinking Trump Might Be Prosecuted After All

Some legal commentators who once said Trump couldn't be prosecuted for his actions on Jan. 6 are changing their minds.
President Donald Trump speaks to supporters from the Ellipse near the White House on January 6, 2021. (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

Former President Trump’s speech at the Ellipse was many things — low-class, loaded with conspiracy theories, reckless.

But to many legal elites, it fell short of incitement.

But after the Jan. 6 Committee hearings — and, specifically, after Cassidy Hutchinson’s testimony on Tuesday — that view may be starting to change.

Multiple legal commentators and former DOJ officials who had publicly stated, before Tuesday, that Trump’s activities did not meet the exacting legal standard for incitement have now changed their views.

“There’s no question about intent. There are enough pieces of evidence about what Trump did that made this more likely than not,” said Alan Rozenshtein, an associate professor at University of Minnesota Law and former attorney-adviser in the DOJ’s National Security Division. “He tried to get the magnetometers removed, tried to get them to march on the Capitol.”

The testimony paints the picture, he said, of knowing wrongdoing by the former president.

It marks a shift for Rozenshtein, mirrored by other legal observers across the political spectrum.

Before Hutchinson’s testimony, Trump’s remarks were viewed by many as reckless, but fundamentally within the realm of political speech, evading the standard for incitement. It was, commentators argued, definitely within the boundaries granted to politicians, who frequently urge supporters to “fight” for political action.

In January, Rozenshtein argued to TPM that Trump’s action’s on Jan. 6 didn’t meet the bar in part for that reason — they qualified as political speech — even as he took to “alleging a massive conspiracy and fraud on the American public.”

“It’s a lie, but to me it’s campaign rhetoric; that’s him going to the American people, and it’s what we’d want him to do if the Constitution really were under attack,” Rozenshtein said.

But Hutchinson added a few sentences which, for Rozenshtein, changed that calculus.

“Take the f-ing mags away. They’re not here to hurt me. Let them in. Let my people in. They can march to the Capitol after the rally is over,” Hutchinson recalled Trump saying.

It’s not that Hutchinson’s testimony was itself a smoking gun. But it emerged after weeks of hearing which describe a coordinated, premeditated campaign to overturn the election result which culminated in an explosion of violence on Jan. 6.

Her testimony in conjunction with the other hearings have changed the views of other legal commentators across the political spectrum. David French, the notable conservative attorney and never-Trumper, wrote a column arguing that Hutchinson’s testimony provided persuasive evidence that Trump met the legal standard for incitement provided by the Supreme Court in the Brandenburg case: that of stoking “imminent lawless action.”

“He is trying to bring in not just the guns, but the people with the guns, into the mob,” left-leaning Fordham Law Professor Shugerman told TPM. “It’s not a slam-dunk case yet, but up until yesterday, most of what we had was political speech.”

The difference for Shugerman, too, came with Trump’s alleged “take the f-ing mags away” remark.

“Those three sentences give you mens rea,” he added — the legal term for when a person has knowledge that they’re doing something that violates the law.

Even Andrew McCarthy of the National Review, typically more interested in condemning those investigating Trump, conceded that Hutchinson’s testimony pointed to the former President being “culpable” for the riot.

“It’s a vibe shift,” Rozenshtein laughed.

At the time, per Hutchinson’s testimony, Trump had been informed that men armed with AR-15s and “spears” were gathering near the Ellipse. Hutchinson testified that Trump then ordered the armed men to be allowed into the crowd with their weapons. He then directed the crowd to the Capitol.

There’s still much that’s unknown about the episode including, as Shugerman pointed out, whether the Secret Service followed the order and let the armed men through.

Shugerman also believed before Hutchinson’s testimony that Trump hadn’t met the bar for a crime. But he said that after hearing Hutchinson’s testimony, he saw two elements of a criminal charge for incitement potentially met: intent, and a bad act.

“Some speech is performative, but if a president give an order to do something, that’s an order,” Shugerman said. “This is not just political speech anymore — an order to take away metal detectors is a concrete act.”

And Rozenshtein argued that for any charging decision, prosecutors would still have to weigh the same balance between protecting political speech and punishing wrongdoing.

“Does [Merrick Garland] think that these facts are sufficiently egregious that Trump can be prosecuted without really anyone in the future being worried that if I make a speech criticizing some congressional budget resolution, I’m gonna be liable for incitement?” he asked rhetorically.

It’s not clear how senior DOJ leaders like Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco will view the testimony or if it’s even new information for them.

Whether Garland has the appetite to launch such a prosecution also isn’t clear. Shugerman, among others, thought that incitement to riot may not even be the applicable charge in a situation where statutes already exist that prohibit the intimidation of members of Congress.

But the description of Trump’s conduct is now public, as are the concerns of those around him that they would need pardons before he completed his term.

That, Rozenshtein and other argued, puts pressure on the DOJ to decide how it will act.

“Indictments are not just about whether the case is legally provable, but about whether its in the public interest to charge,” he said.

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