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Opinion | Bombshell Jan. 6 Testimony Could Hurt a Justice Department Prosecution

The use of prior statements of a witness in an effort to discredit them is certainly one of the most basic tactics of cross-examination at a trial. It can be probably the most efficient, even with witnesses who would in any other case appear to have a nice deal of credibility and little motive to lie or shade their testimony. That is why attorneys getting ready for a trial spend a rare period of time reviewing key witnesses’ prior statements in minute element, notably if these accounts got to authorities investigators or places of work, wherein case the witness has a notably vital incentive to talk precisely and in truth with the intention to keep away from penalties for lying to the government.

The recent implosion of particular counsel John Durham’s case in opposition to Michael Sussmann, a lawyer for the 2016 Hillary Clinton marketing campaign, illustrates the purpose starkly. Before Sussmann’s indictment, the important thing witness in opposition to him — former FBI basic counsel Jim Baker — had offered a number of variations of the related occasions to investigators in Congress and the Justice Department’s inspector basic’s workplace that appeared to vary in slight but material ways. When Baker took the stand, he claimed he was “100 percent confident” about his recollection, however protection attorneys successfully exploited the obvious inconsistencies after they cross-examined him, in the end contributing to Sussmann’s acquittal.

Hutchinson offered a number of interviews to the Jan. 6 committee earlier than switching lawyers as a result of she had more information that she wished to share with the panel. That means that a few of her most attention-grabbing testimony — maybe Trump’s feedback about armed supporters, his confrontation together with his (*6*), even the ketchup — might not have been in earlier accounts to the committee. If she had been to be a witness sometime in a prison trial regarding these occasions, any competent protection lawyer will mine them for something that may appear like an inconsistency or omission — even when the related data had not been particularly sought by her questioners — with the intention to counsel that she is unreliable. (“In fact, you didn’t even tell the committee x, y, and z in your first few meetings, did you?” and many others.)

Another witness who has already testified for the Jan. 6 committee presents a extra placing model of the potential downside.

Richard Donoghue, the deputy legal professional basic within the waning days of the Trump administration, just lately testified about a Dec. 27, 2020 dialog, wherein Trump pressed Donoghue and then-acting Attorney General Jeffrey Rosen to research a litany of claims of election fraud. Donoghue testified at the televised hearing that he made it “very clear to the president what our investigations had revealed, and that we had concluded based on actual investigations, actual witness interviews, actual reviews of documents that these allegations simply had no merit.” He continued: “As the president went through them, I went piece by piece to say no, that’s false. That is not true. And to correct him really in — in a serial fashion as he moved from one theory to another.”

It sounded spectacular, dramatic and consequential. One of the Jan. 6 committee’s theories of criminal liability is that Trump broke the regulation by mendacity about election fraud with the intention to forestall the certification, so Donoghue’s testimony in regards to the name additionally sounded prefer it may present an necessary piece of proof that Trump knew his claims had been false within the run-up to Jan. 6.

Donoghue’s account, nonetheless, didn’t totally observe an earlier version that he offered a yr in the past in an interview behind closed doorways with the Senate Judiciary Committee, which investigated the identical occasions. When requested about the identical name, Donoghue testified that “the president did the vast majority of the talking.” On the topic of Trump’s varied claims of fraud, Donoghue defined that “we sort of were taking the approach of saying, you know, ‘Yes, we’re aware of it,’ or if we’re not, admitting that, ‘Well, we haven’t heard that one before.’” According to Donoghue, he and the performing legal professional basic deliberate this forward of time — agreeing beforehand that their technique would “be to say to the president we’re doing our job. ‘Yes, sir, we understand. We’re doing our job.’ And try to leave it at that as much as possible.”

This didn’t sound fairly just like the courageous truth-telling second that Donoghue described in his televised look. Even if there are benign causes for that, any first rate protection lawyer would argue that Donoghue modified his story to make himself look higher and Trump worse. Perhaps, the argument would go, he did so to boost his public fame {and professional} standing, or just because the reality — that he was a high regulation enforcement official who, together with the performing legal professional basic, listened idly whereas Trump spouted harmful nonsense — makes him sound ridiculous.

The particulars regarding Hutchinson and Donoghue’s prior testimony turned public largely by happenstance. We have no idea whether or not and to what extent different witnesses, whose prior testimony stays secret for probably the most half, would face comparable questions if examined in a courtroom of regulation.

This subject — the potential perils of necessary witnesses offering statements to totally different investigators — is well known to prison investigators and prosecutors in advanced circumstances. They attempt to keep away from such issues by minimizing the variety of occasions that key witnesses communicate with different investigators. But it usually arises when prosecutors are conducting a so-called parallel prison investigation alongside a civil regulator, just like the Securities and Exchange Commission, that wishes to interview somebody who could also be necessary to a potential prison case in regards to the identical underlying conduct.

Dealing with it could actually, in principle not less than, be as easy for prosecutors as sustaining a wholesome and collegial line of dialogue with their civil counterparts and asking them to carry off on interviewing sure individuals so they don’t create a paper path that might later be utilized by protection attorneys to question their credibility. This doesn’t at all times go easily, since these different investigators have a job to do as nicely, and understandably, they don’t find it irresistible when the Justice Department slows their work (even when they in the end accede to the request).

There have been some notable coordination problems between the choose committee and the Justice Department, however they appear principally to be the division’s fault — and that seems to be true right here, too. The New York Times recently noted that “it remains unknown if prosecutors are looking directly at Mr. Trump’s own involvement in subverting the election or inspiring the mob that wreaked havoc at the Capitol,” however after Hutchinson testified, the paper reported that federal prosecutors engaged on the office’s Jan. 6 investigation “watched the aide’s appearance” and “were just as astonished by her account … as other viewers.”

DOJ officers blamed the very fact they felt “blindsided” by the committee’s unwillingness to offer all of the videos and transcripts of its interviews, however the truth is, the anecdote displays extra poorly on the Justice Department than on the committee, because it means that prosecutors did not uncover Hutchinson’s testimony themselves regardless of her being available to them.

It can be too easy to counsel this downside was totally avoidable, however it may have been mitigated if the Justice Department had instantly undertaken a concerted investigation into the conduct of Trump, together with these closest to him within the White House and his reelection marketing campaign, after which explained as much to the committee (and, ideally, to the general public). We have all as an alternative been left considerably in the dark in regards to the scope of the division’s investigation, main many people to specific the same frustration shared by a number of the committee’s personal members.

One of them, Rep. Zoe Lofgren (D-Calif.), had a particularly apt response over the weekend to the Justice Department’s reported unhappiness over Hutchinson’s testimony. “I was surprised that the prosecutors were surprised,” she mentioned. “What are they doing over there?”

It’s a good query.

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