Daily Comment

A Potential Criminal
Prosecution of Donald
Trump Is Growing
Closer
As evidence mounts, a rift has opened between
the congressional committee investigating
January 6th and the Department of Justice.

By David Rohde
June 30, 2022
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 Cassidy Hutchinson’s testimony to the House select committee
investigating the Capitol riot astonished Justice Department
prosecutors as much as it did the viewing public. Photograph by Anna
Moneymaker / AP

A
ttorney General Merrick Garland receives a
briefing each week from senior Justice
Department officials on the D.O.J.’s criminal
investigation of the January 6, 2021, assault on the
U.S. Capitol, the largest in its history. Various
cases are discussed, but one question looms over
Garland, the department, and American politics:
Does enough evidence exist to prosecute former
President Donald Trump for his role in the
insurrection? For months, members of the House
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 select committee investigating the attack have
accused Garland of moving too slowly. The
Attorney General, who has declined to publicly
comment on the case against Trump, has promised
to “follow the facts wherever they lead.”

The extraordinary revelations to the committee, on

Tuesday, by the twenty-six-year-old former White
House aide Cassidy Hutchinson regarding
Trump’s actions and statements on and in the lead-
up to January 6th strengthened a potential criminal
case against him. “Her testimony moved the
needle,” David Laufman, a former senior Justice
Department official and federal prosecutor, told
me. Evidence that Trump intentionally obstructed
an official proceeding—Congress’s certification of
Joe Biden’s victory in 2020—is mounting. On
Wednesday night, the committee issued a
subpoena for Pat Cipollone, the former White
House counsel. Hutchinson, in her testimony, said
that Cipollone repeatedly warned the President
that his actions were illegal. Cipollone, who has
declined to testify under oath so far, has the
opportunity to become the John Dean of the
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 Trump era: a White House counsel who puts the
public airing of a President’s criminal activity
above party loyalty.

The feverish and tribal nature of American politics

today threatens again to reduce the chances that
Trump will be held accountable. Hutchinson’s
testimony astonished Justice Department
prosecutors as much as it did the viewing public,
the Times reported. It also blindsided them. The
committee gave no advance warning of
Hutchinson’s statements to department
prosecutors, who have spent months investigating
the assault. The prosecutors don’t have access to
videos and transcripts of hours of testimony that
Hutchinson has provided to the committee behind
closed doors.

A rift appears to be opening between Congress

and the D.O.J. Earlier this month, four top Justice
Department officials sent a letter to the committee
criticizing it for not sharing transcripts from the
thousand-plus interviews it has conducted. “The
Select Committee’s failure to grant the
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 Department access to these transcripts complicates
the Department’s ability to investigate and
prosecute those who engaged in criminal
conduct,” the letter stated.

The hearings are also creating opportunities for

defense lawyers representing Trump loyalists.
They have complained to prosecutors that the
committee’s practice of releasing limited details of
its investigation—often in dramatic, made-for-
virality clips—is unfair to their clients. Like the
Justice Department, these defense lawyers contend
that they, too, should have access to all relevant
evidence, including exculpatory material, as
occurs in criminal trials. They also argue that the
revelations bias jurors against their clients.

The chairman of the select committee, Bennie

Thompson, has said that its members’ highest
priority is to complete the hearings, which are
now expected to last through the summer. He has
also said that the committee will not share all its
information with the D.O.J., and has complained
that some of the requests have been intrusive. “My
:
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 understanding is they want to have access to our
work product,” he said, in May. “And we told
them, ‘No, we’re not giving that to anybody.’ ”

Parallel investigations by Congress and the D.O.J.

—and tensions between them—are not new in
Washington. The two branches have different
processes, and different goals. A congressional
investigation is primarily an effort to perform
oversight, inform the public, and try to persuade
voters to hold Trump accountable at the ballot
box. Jamie Raskin, a member of the committee,
told me, several months ago, “We need to win this
struggle politically.” The committee has generally
earned praise for redefining how landmark
hearings can be conducted on Capitol Hill, by
replacing drawn-out speeches with tightly scripted
presentations. Supporters of the committee have
said that a clear narrative is needed to overcome
Trump’s rampant lying and willingness to spread
disinformation to confuse voters.

Justice Department prosecutors, who enforce

federal law, are more constrained. They are
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 required to keep their investigations secret, to
avoid defaming individuals who may not
ultimately be charged with crimes. They must
assess and share all potentially exculpatory
evidence with defense lawyers before a trial. And
they must convince every member of a jury that
the accused committed a crime beyond a
reasonable doubt. If Trump were to be tried and
acquitted, it would boost him politically—another
“deep state” plot foiled. And, even if he were
convicted, legal experts say that it would not bar
him from running for President.

Both investigations have arguably made errors in

approach. The House committee’s presentations
often convey to the public that securing a criminal
conviction of Trump would be simple. (He has
survived two impeachments, a special-counsel
investigation, and myriad congressional inquiries.)
The D.O.J. probe initially focussed on hundreds of
low-level offenders, and Garland appears to have
shied away from immediately investigating
Trump, as part of an effort to project impartiality.
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 Laufman, the former federal prosecutor, who has
also worked as a congressional investigator and
defense lawyer, called for patience, despite the
stakes. “I understand the desire of people to hold
Trump criminally responsible for his conduct with
respect to January 6th,” he said. “But it is
completely inappropriate for the Justice
Department to allow political considerations to
impact its decision with whether or not to charge
someone with a crime. They have to apply the
same standards and ethos to how to proceed with
this case as they would with any prosecution,
understanding that the national security of the
United States hangs in the balance.”

Stephen Gillers, a law professor at New York

University, also called for patience. “The Attorney
General had said he will follow the evidence,”
Gillers told me. “I believe him, and I believe there
will be an indictment.” The refusal by Pat
Cipollone and other former White House officials
to testify may yet protect Trump. But the political
reality and the evidence are both increasingly
clear. In an unprecedented moment in American
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 history, a President who conducted a failed coup
appears intent on returning to power by any means
necessary. If there was ever a time for
coöperation, trust, and patience among Trump
opponents, regardless of position or party, it is
now. ♦

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 Sign up for our daily newsletter to receive the best
stories from The New Yorker.

David Rohde is an executive editor of

newyorker.com. He is the author of,
most recently, “In Deep: The F.B.I.,
the C.I.A., and the Truth about
America’s ‘Deep State.’ ”

More: Merrick Garland Department of Justice Congress

Donald Trump Capitol Riot

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