RUTHFULLY YOURS

The pushback against the congressional testimony of Cassidy Hutchinson, former principal aide to Trump White House chief of staff Mark Meadows, has gotten more intense. (I addressed it in this post Wednesday.) After the fanfare with which the January 6 committee hyped Hutchinson’s testimony, which was presented in a nationally televised session, the panel owes it to the country to release recordings and transcripts of the behind-the-scenes interviews it has conducted with former White House operations director Tony Ornato and Secret Service agent Robert Engel.

To recap, Secret Service sources have told the media that Agent Engel, who ran Trump’s security detail, and a thus-far unidentified agent who drove the Secret Service SUV in which the former president was ferried away from his January 6 Ellipse speech both deny that there was a physical skirmish in the car. Hutchinson testified that she was told by Ornato, with Engel present and apparently concurring, that Trump grabbed the steering wheel, had his arm grabbed by Engel, and lunged threateningly at Engel with his free hand.

I continue to think this portion of the story is being overblown. Maybe I’ll be proved wrong. Vice chairwoman Liz Cheney, who assured skeptical Republicans that the committee would not be carried away by anti-Trump animus and would conduct a professional investigation, took the lead in presenting Hutchinson’s testimony. I’m taking her at her word, and thus assuming the committee would not intentionally present misleading testimony.

Hutchinson did not claim to have seen this encounter. Further, Hutchinson testified publicly and under oath. By contrast, the media’s sources are not only unsworn but anonymous. So in essence, Hutchinson is being contradicted about something she didn’t witness and probably would not be permitted to testify about in a real trial, by people who won’t attach their names to their claims and, for all we know, may have even less admissible testimony than Hutchinson — if they testified, which they haven’t.

The anonymous sources maintain that Engel and the driver are not just willing but eager to testify about what happened, or didn’t happen, in the car. Clearly, that testimony should be scheduled forthwith, and it should be public just like Hutchinson’s was. If the committee is honestly trying to get to the bottom of what happened, this would be in its interest.

Hutchinson’s testimony has drawn public attention. But I think it’s misunderstood. The significance is not whether Trump skirmished with the agents in the SUV. It is that Trump was furious that the agents would not take him to the Capitol, where he was planning to join in the protest by what — according to Hutchinson — the former president knew was an armed mob, one he had just implored to “fight” for him (his lip-service caveats about “peaceful” protest notwithstanding).

Tellingly, the anonymous sources, who’ve informed the press that Engel and the driver dispute Hutchinson’s testimony about the alleged skirmish, are not claiming Hutchinson is wrong about Trump’s anger and determination to march on the Capitol with the mob. That is the salient issue.

In light of the committee’s indignant public complaints about refusals to testify by people who have lawful, constitutionally rooted confidentiality privileges, the panel should expeditiously obtain and present testimony from eager witnesses who want to shed light on Hutchinson’s testimony, which has generated a committee-caused public controversy.

Now, let’s turn to an allegation that, if true, would indeed be a blow to Hutchinson’s credibility.

Fox News is reporting that “a source close to former Trump Chief of Staff for Operations Tony Ornato” — a source the report does not identify — insists Ornato did not tell Hutchinson that Trump tried to grab the steering wheel. According to the report, “Ornato watched the hearing [Tuesday] and was shocked when Cassidy made the allegation about the steering wheel.”

According to the source, Ornato, like Engel, has provided behind-the-scenes deposition testimony to the committee in the last year. The source added that Ornato, like Engel and the driver, is eager to testify under oath and refute Hutchinson’s testimony in this regard.

Now, let’s stipulate that what’s already been said applies here too: Fox’s source is anonymous and unsworn. Still, this raises a significant problem with Hutchinson’s testimony.

As I noted Wednesday, if the encounter in the SUV was not as she described it, that would not be much of a blow to Hutchinson’s credibility because she never claimed to have seen it; she was just relating what she was told.

If, however, Ornato, the person Hutchinson says was her source on the skirmish in the SUV, were to testify under oath that he did not tell her what she claims he told her, that would raise the possibility that she is either lying or mistaken. Even if it’s just the latter, we’re talking about a very memorable detail, one it would be hard to believe someone could get so wrong. That would call into question her overall reliability. It would call into doubt other important aspects of her testimony.

Let’s not get ahead of ourselves.

If Ornato were to give testimony contradicting Hutchinson, it would not necessarily mean he is right. It is common in trials and hearings that witnesses have divergent recollections, meaning the fact finder must assess whose version of events is more credible.

This brings us back to the deeply flawed January 6 committee structure and practice. There are no committee members with perspectives that counter the panel’s single-minded determination to nail Trump. There is no cross-examination, which is the tried-and-true way to test the credibility of witnesses and decide which ones are more reliable.

Another critical point. Let’s pretend this were a trial (which requires a lot of pretending because of the committee’s lack of due process). If a dispute about potentially contradictory evidence arose, the judge would order the committee, in the role of prosecutor, to disclose the deposition testimony of Ornato and Engel. And it is easy to understand why.

There is the obvious question of whether Ornato and/or Engel gave testimony that contradicted Hutchinson’s account. If so, the judge would demand to know why the prosecutor, in publicizing Hutchinson’s version of events, not only failed to confront Hutchinson with questions based on the contradictory information, but kept the contradictory testimony under wraps.

The committee claims to be conducting an investigation, not orchestrating a smear. But grand-jury and other law-enforcement investigations are done in secret precisely to avoid prejudicing the jury pool this way. The government is not supposed to speak until it is ready formally to file charges — until, that is, it has weighed all the contradictions, settled on a version of events, and now takes on the legal obligation of disclosing any contradictory evidence to the defense so that it can be aired out at a trial that is governed by due-process rules.

Again, I have resisted leaping to the conclusion that the committee is hiding contradictory or exculpatory evidence. Its members and staff include many lawyers, including experienced prosecutors. They know it would be egregious to publicize a shocking version of events while concealing evidence that undermines it, so I have assumed they wouldn’t do that. For now then, I maintain that assumption. Even so, there is a problem.

In the committee interviews, perhaps Ornato and Engel did not contradict Hutchinson’s testimony about what happened in the car because they weren’t asked about it. I’m not implying deception here. Maybe the committee didn’t know about the alleged SUV incident, and didn’t ask Ornato and Engel a question that would have called for revealing it. (Note: The burden is always on investigators to ask the right questions; witnesses are obliged to be truthful, but they are not required to volunteer information.) Maybe the committee first learned that something may have happened in the SUV when it more recently interviewed Hutchinson. (Remember: In abruptly scheduling Hutchinson’s televised testimony, the committee said it had newly discovered information.)

That’s all fine. But what it would mean is: At the time the committee learned new information from Hutchinson, it had access to Ornato and Engel, who were apparently cooperative. Ergo, before publicly airing a sensational story about which Hutchinson acknowledged she lacked firsthand information, the committee could have reinterviewed Ornato and Engel to make sure she had it right. That’s the least a responsible investigator would do before accusing a president or former president of such unhinged behavior. Yet, Ornato is said to have been shocked by Hutchinson’s testimony and, according to Politico, the Secret Service says the committee did not contact the agency in the days before airing her explosive allegation.

Let’s say the committee reinterviewed Ornato and Engel, and they denied Hutchinson’s account. The committee could then have assessed whether Ornato and Engel were telling the truth. If they seemed credible, the committee could have gone back to Hutchinson and grilled her, particularly about whether Ornato really briefed her about the SUV incident — which he reportedly denies.

That is what is supposed to happen in an investigation. That’s why professional investigations do not go public while they are still gathering information. Until the relevant witnesses have been questioned about all the pertinent topics, and until the investigators have coherent explanations for any material inconsistencies, it is not just a mistake to go public with splashy allegations; it is deeply prejudicial. It undermines the committee’s assurances that it is not engaged in a political witch hunt.

The January 6 committee owes the public a prompt explanation, including disclosure of all the relevant information. It is worth noting that the committee continues to make public demands that people with germane information come forward and volunteer cooperation. Why would a sensible person do that if the committee is playing fast and loose with what snippets of testimony it chooses to publicize and what it keeps under wraps?

Finally, an observation based on hard experience. When federal prosecutors are trying to build a significant criminal case, one of their worst nightmares is Congress. Prosecutors try to be methodical, knowing that any mishandling of witnesses in the investigative stage can blow up the case at trial. That’s why the Justice Department winces when members of Congress get interested in a matter under criminal investigation. They are going for the big publicity splash in the service of some transient political objective.

Congressional members and staff are busy with legislative matters. Even if criminal investigation were their area of expertise (it’s usually not), they don’t have time to build a case methodically. Prosecutors will tell you that is a full-time job, with very long hours. Congress, moreover, has no responsibility for the outcome of any prosecution. If members do things that are sure to damage a key witness’s credibility at some later trial — such as failing to confront her with contradictory information, or to corroborate her before having her testify publicly about matters as to which she lacks firsthand knowledge — it’s not their problem.

That is why, before witnesses have testified at trial, the Justice Department typically declines to make them available to congressional committees. In normal cases, when DOJ takes that stance, members of Congress may grouse, but committees do not try to subpoena the witnesses over DOJ’s objection; they don’t want to be accused of undermining an important prosecution.

The Capitol riot is not a normal case, of course. Congress has an unusually weighty interest in probing it. But that doesn’t suspend the laws of nature or the dynamics of witness preparation. The January 6 committee has suggested that it would like to see Donald Trump get indicted. The prosecution of a former president would be a daunting proposition for DOJ under any circumstances. If a congressional committee, however well-intentioned, wounds the credibility of essential witnesses before DOJ has even decided whether to bring what would be a very tough case, chances are that DOJ would abstain.