Hutchinson testimony jolts Justice Dept. to discuss Trump’s conduct more openly
By Katie Benner and Glenn Thrush
For the past year and a half, the Justice Department has approached former President Donald Trump’s effort to overturn the 2020 election results with a follow-the-evidence strategy that to critics appeared to border on paralysis — and that limited discussions of his role, even inside the department.
Then came Cassidy Hutchinson.
The electrifying public testimony delivered last month to the House Jan. 6 panel by Hutchinson, a former White House aide who was witness to many key moments, jolted top Justice Department officials into discussing the topic of Trump more directly, at times in the presence of Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco.
In conversations at the department the day after Hutchinson’s appearance, some of which included Monaco, officials talked about the pressure that the testimony created to scrutinize Trump’s potential criminal culpability and whether he intended to break the law.
Hutchinson’s disclosures seemed to have opened a path to broaching the most sensitive topic of all: Trump’s own actions ahead of the attack.
Department officials have said Hutchinson’s testimony did not alter their investigative strategy to methodically work their way from lower-level actors up to higher rungs of power. “The only pressure I feel, and the only pressure that our line prosecutors feel, is to do the right thing,” Garland said this spring.
But some of her explosive assertions — that Trump knew some of his supporters at a rally on Jan. 6, 2021, were armed, that he desperately wanted to join them as they marched to the Capitol and that the White House’s top lawyer feared Trump’s conduct could lead to criminal charges — were largely new to them and grabbed their attention.
Overt discussion of Trump and his behavior had been rare, except as a motive for the actions of others, a subtle but significant change that was underway even before Hutchinson’s testimony.
A small team of prosecutors in the U.S. attorney’s office in Washington has ramped up its investigation into a scheme to install fake state electors, spearheaded by lawyers who were in frequent contact with Trump. And the Justice Department’s watchdog is investigating efforts undertaken by Jeffrey Clark, a former department official who discussed the plan with Trump, to undo the results of the election.
A flurry of recent subpoenas related to the electors inquiry and raids related to the inspector general’s investigation into Clark — which were done with the knowledge of the department’s senior leaders — suggest that those investigations are accelerating. At the very least, those moves indicate that prosecutors are inching closer to the former president.
Investigators initially focused on the rioters who had attacked police officers, stormed the building and menaced the news media. But as evidence that members of far-right extremist groups had engaged in a seditious conspiracy mounted, a tense internal debate erupted over how to widen the sphere of possible defendants.
Some prosecutors wanted to compile lists of their fellow members and see what they might know, according to two people familiar with the plan. Top FBI and Justice Department officials shot it down. It is unconstitutional to investigate a person solely based on their association with a group, and doing so runs afoul of department policy, which says a person’s actions can be examined only if evidence links them to a crime, they argued.
On the day he took office, March 11, 2021, Garland sat through a detailed briefing on the status of the investigation delivered by Michael R. Sherwin, the head of the U.S. attorney’s office in Washington who was overseeing the inquiry. Sherwin presented Garland with a strategy that included four teams of prosecutors, labeled A through D: “Team B,” already staffed by 15 lawyers, had begun looking into “public influencers and officials” linked to the attack, according to a copy of a memo shared with The New York Times.
Garland listened intently and thanked Sherwin for his hard work under difficult circumstances, according to people familiar with the exchange.
Sherwin, who had been appointed by Trump, then appeared on “60 Minutes” and suggested the inquiry should target the highest levels of government — naming names. “Maybe the president is culpable for those actions,” he said, infuriating the department’s new leadership.
Within six weeks, he had returned home to Miami, and Garland’s team took over.
Garland’s appointees have struggled with many of the same thorny questions about the scope of the investigation as their predecessors did. They were uncertain they could show that the nonviolent activity to thwart the peaceful transfer of power violated criminal law, according to people familiar with the inquiry.
Those concerns seem to have faded, with prosecutors pursuing the investigation into the alternative elector plan, and Clark’s actions.
While there has never been a prohibition, formal or otherwise, against discussing Trump, top department officials then and now made clear that prosecutors should be focused on the evidentiary road in front of them, not to a road map leading to Trump.
Until recently, that entailed tightly steering discussion to the details of specific cases being developed — rioters, midlevel ringleaders or Trump associates involved in the state electors scheme, according to current and former officials — not to speculative ones.
If career prosecutors uncover evidence linking Trump to the crimes that they are investigating, new procedural hurdles make it more complicated for them to look into his actions. In 2016, rank-and-file FBI agents did not need approval to investigate actions by Hillary Rodham Clinton and Trump. But Attorney General William Barr issued a memo that requires the attorney general, via the deputy attorney general, to approve such a move, which could place additional pressure on Monaco.
Monaco does not micromanage staffing decisions, but she is consulted on significant moves, including the hiring last fall of a little-known federal prosecutor from Maryland, Thomas P. Windom, to pull together some of the disparate strands of the elector scheme.
If Monaco has been steadfast in not discussing even seemingly basic details of the investigation — such as Windom’s hiring — she has been more candid about the challenges of conducting an investigation that is “among the most wide-ranging and most complex that this department has ever undertaken.”
Turnover and attrition have been a challenge. Many of the lawyers assigned to those prosecutions were department veterans temporarily detailed to the District of Columbia attorney’s office from other cities. Some supervisors back home, dealing with a sharp post-pandemic surge in violent crime, have aggressively pushed for their return.
In March, the department requested $34.1 million to bring on an additional 131 lawyers for the investigation. It was ignored — infuriating senior department officials, who have privately noted the contradiction between congressional calls to speed the inquiry and the denial of resources the department needs to hire more prosecutors.
Monaco has personally pushed for the funding herself, while emphasizing her intention to make do with whatever is at hand.
“Regardless of whatever resources we see or get, let’s be very, very clear — we are going to hold those perpetrators accountable, no matter where the facts lead us,” Monaco said in March.
“No matter what level,” she added.