“The Cassidy Hutchinson Fiasco”…Addendum

Lest I be accused of minimizing the Cassidy Hutchinson testimony before the House January 6 Star Chamber this week, I direct EA readers to to this National Review article by the usually fair and perceptive Andrew McCarthy, a former federal prosecutor. He calls the testimony “devastating” and inveighs, “Things will not be the same after this.

I don’t know what he thinks isn’t going to be the same; maybe you can enlighten me. Are there really people out there who will be surprised that Trump threw tantrums, objects and ketchup bottles, or that when he was angry and excited, he was irrational? Does McCarthy really not know that many Presidents, in private, with staff, in meetings, and similarly dealing with the most stressful jobs imaginable, have behaved outrageously, except that in their case did not have dozens of leakers, disloyal aides and other staff and others determined to undermine them as well as an almost unanimously hostile press to publicize rumors, gossip, suspicions and facts indiscriminately? Really? Presidents, as a group, are not normal or emotionally healthy: if they were, they wouldn’t have sought the Presidency or achieved it. Is Trump worse than most, or even all in this regard? Maybe, probably; why do you think Ethics Alarms kept repeating for over a year that he must never be elected? Does McCarthy not know the history of the Type A CEO personality in this country? About Henry Ford employing a guy whose sole job was to chop the desks of fired Ford Executive into kindling so they would know they had been fired? Nevertheless, the fact that Trump acted and talked like anyone paying attention knew he would act and talk doesn’t mean he committed crimes.

Furthermore, once again we are getting “Trump wanted to do X” and “Trump said Y” while his staff and the Secret Service obstructed him when his stated desires were extreme, rash, an abuse of power, or just plain nuts. The staff did their jobs, in other words, just like dozens of Presidential staffs have done in other administrations. I’m impressed, in fact: Trump, thanks to the most competent old hands in the Washington swamp being bullied away or scared off for fear of becoming pariahs and not getting invited to swank Capital Hill wine parties, had a distinctly sub-par batch of advisors. They came through when they had to. Good for them. They were far from the first to stop a POTUS from doing stupid or reckless things.

McCarthy admits that much of Hutchinson’s testimony was hearsay; he acknowledges that the committee is as rigged as Trump thinks the election was; he concedes that because the House hit-squad denied any cross-examination of witnesses, Hutchinson’s testimony cannot be automatically believed, and calls the committee “highly partisan, unapologetically anti-Trump.” I don’t know why he still thinks such an unethical exercise will have any effect at all except to make people who already hate Trump and want to see Democrats criminalize politics where Republicans are concerned more vehement than they already are.

The biggest issue for McCarthy, as it was for Podhoretz in his article is that Trump allegedly didn’t want the crowd for his rally speech checked for weapons, because he was certain no one would try to hurt him, and he wanted the biggest crowd possible. McCarthy then writes,

The magnetometers were vital for security. Despite its being obvious that the “mags” would detect weapons, many fanatics went through them anyway. Police thus seized knives, clubs, toxic sprays, brass knuckles, and so on. But that is not what most alarmed security forces. They worried about the mobs outside the Ellipse — the fanatics who chose not to go through the mags because they were armed with deadlier weapons: Glock pistols, AR-15s, other firearms. Cheney played communications traffic among the security forces, along with video depicting gunmen who were spotted in trees and elsewhere out on the Mall.

The president of the United States, nevertheless, was “furious,” Hutchinson related, because the armed mob was being kept away. It spoiled the optics he had in mind….It didn’t matter [to Trump] that they were obviously there to hurt others, and that those others were patently the people inside the Capitol, the ones Trump was accusing of stealing the election.

Now there’s a leap for you! How was it “obvious” that they were there “to hurt others”? How does McCarthy (or did Trump) know they weren’t armed to protect themselves? Not a single video feed of the mess inside the Capitol showed anyone carrying an AR-15 or a Glock, and a rifle isn’t exactly easy to hide. McCarthy also agrees that Trump’s speech, as irresponsible as it was, could not meet the legal definition of incitement.

The National Review is famously anti-Trump, but I expect McCarthy, one of its best and most reliable writers, to rise above bias. Here he fails. For example, he writes,

  • “Trump apologists, moreover, were quick to point out that Hutchinson’s account is hearsay: She heard the story from Ornato, who got it from Engel. That’s true. Still, a few things are worth bearing in mind. First, this isn’t just any hearsay — like idle chatter a witness might eavesdrop on. We’re talking here about a chain of command, where government officials are expected to report things to their superiors — in this instance, up to the president’s chief-of-staff. More to the point, Hutchinson learned these details just minutes after the encounter in the SUV. Ornato came directly to Meadows’s office with Engel. As Engel looked on in apparent affirmation, Ornato relayed what had just happened to Hutchinson. Engel gave no indication that Ornato had gotten any of the details wrong. And if Hutchinson is lying or exaggerating, it’s strange that, under oath, she would voluntarily identify so many witnesses who could contradict her.”

Trump “apologists”? How about “fair observers who don’t like seeing hearsay represented as convincing evidence, when it’s not?” Moreover, as mentioned in the earlier post, the Secret Service now denies Hutchinson’s account….and that’s why hearsay is not evidence.

  • “We should understand, in any event, that what Cheney did with Hutchinson Tuesday is what prosecutors do with witnesses in grand juries every day: drawing out the witness’s testimony with no obligation to provide the defense perspective. To be sure, no one gets convicted at the grand-jury stage, but an awful lot of people get indicted this way, and on far less evidence than the country heard today.”

Really, Andrew? Rationalization #22, “It’s not the worst thing”? An awful lot of people get indicted who shouldn’t be (remember the “ham sandwich”!). Has Bernstein ever seen a prosecutor before a grand jury hug a witness? Maybe that hug from Cheney explains why Hutchinson was insufficiently wary about embroidering on her testimony.

  • “Now, it is all well and good to remind everyone, again, that the January 6 committee has foolishly undermined its credibility by failing to provide a fair process. No, there was no cross-examination of Hutchinson…For now, all we can responsibly do is ask ourselves whether the evidence presented under these deficient procedures seems coherent and credible. Whether it will ultimately hold up when finally challenged — as it very well may be in, say, an eventual criminal trial — is another story. I’ll just say this: When I was a prosecutor, I obtained very good information from sources that were a lot more suspect than the January 6 committee — terrorists, hitmen, fraudsters. Yes, I still had to prove it in court, in the crucible of adversarial challenge and cross-examination. On the other hand, I wouldn’t have elicited it in court unless I had first been convinced that it was true.”

More rationalizations. It seems credible to those who already are convinced that Trump is a monster who should be prosecuted. McCarthy has been reduced to arguing that an unfair process constructed specifically to find evidence for the purpose of destroying a political foe can ever lead to a just result.

15 thoughts on ““The Cassidy Hutchinson Fiasco”…Addendum

  1. The crew at National Review are mostly never Trumpers who want the man or at least his political career, buried.

  2. From RED STATE: “So to recap, there were three “bombshells” in yesterday’s testimony. Two of them have been debunked and the third, that AR-15s were present in the crowd, has no evidence to back it and is so absurd and impossible as to be laughable. What a roaring success, right?

    But don’t be fooled. This is exactly what Liz Cheney and the rest of the dishonest hacks on the committee wanted. They don’t care that they put a liar under oath and had her repeat a bunch of easily disproven nonsense. The goal here was to garner headlines that will now become part of the collective psyche. No one will remember the debunkings, mostly because they won’t even be largely reported.”

    I think that’s basically correct.

    • Red State wrote, “But don’t be fooled. This is exactly what Liz Cheney and the rest of the dishonest hacks on the committee wanted. They don’t care that they put a liar under oath and had her repeat a bunch of easily disproven nonsense. The goal here was to garner headlines that will now become part of the collective psyche. No one will remember the debunkings, mostly because they won’t even be largely reported.”

      Do I hear the rough equivalent of an echo? 😉

      “Short of the constant implications of Trump’s criminal activity with no supporting evidence, multiple gotchas is exactly what this witch hunt is going for and with the vast majority of the media solidly behind the Democrats they’ve presented a spectacular made for prime time political propaganda hit job. The ignorant court of public opinion will hear and see the multiple gotchas repeated ad nauseum and anything that contradicts the gotchas will intentionally get limited exposure or outright suppressed thus enforcing the gotchas to the court of public opinion.”

      That really is a verifiable pattern of propaganda that the political left has been using quite effectively in the 21st century.

  3. That visual of Cheney hugging Hutchinson is not going to play well in Wyoming. In other related news, Cheney tried an outreach to Wyoming Democrats, asking them to register as Republicans for the primary so they could vote for her and help her defeat Hageman. Apparently that outreach didn’t go so well.

    I guess we’ll see what happens to this January 6th committee after this fall. (This fall feels so far away…) If the Republicans do manage to retake the House, I can only assume the committee dies. But I wonder if the reason the committee is so doggedly tracing every rumor, gossip, and flat-out lies is that should the unthinkable occur, and they themselves be investigated for their roles in 2020, that they will find themselves in a very uncomfortable position. People with power will wield it however they can to avoid being torn down.

  4. Jack wrote:

    More rationalizations. It seems credible to those who already are convinced that Trump is a monster who should be prosecuted. McCarthy has been reduced to arguing that an unfair process constructed specifically to find evidence for the purpose of destroying a political foe can ever lead to a just result.

    Isn’t McCarthy’s all pretty much just “The ends justifies the means” restated and embellished with a few other rationalizations masquerading as legal reasoning? One of the things lawyers get so wrong, particularly in the role of prosecutor, is that zealous representation of their client (the government) is the overriding mandate they live under. That’s only right to a degree. Their “One Ring” is the fair and unbiased determination to see justice done, not just a zealous representation of the government’s interests.

    With these facts and circumstances, the government has no case whatever. Grand juries may be able to indict on hearsay, but no rational prosecutor would ever use that as the linchpin of his case. It’s inadmissible in criminal proceedings generally, and certainly Hutchinson’s claims, even to the extent they aren’t credibly refuted by the very people she cites as sources, would be utterly inadmissible even against the Sauron-esque Trump (if we are to believe the J6 Committee’s representations).

    The ends almost never justify the means, McCarthy knows better, and the Never-Trumpers are fools to think this provides them with their most passionate desires — a map to a Trump prosecution and imprisonment. Generally, I respect McCarthy, but his piece didn’t age well even after 24 hours. Thus, we find embedded in this episode a worthy reminder — be sure of your facts before pronouncing something a “bombshell” or use similar damning language. The media, of course, will not heed that advice since they know any consequences for being wrong are already baked-in — only the purblind or suitably ideological pay attention to their opinions couched as “analysis,” anyway.

    For the rest of us, we can only shake our heads in wonder and, for those of us who thought well of some of the participants in this train-wreck, not a little shame.

    • I thought you introduced hearsay at a grand jury to request subpoenas for those who were heard-say? i.e. you get the people quoted to appear before the grand jury to substantiate what was already heard….

  5. Whew! I’m surprised. Andrew McCarthy turns out to be the picture next to the definition of lawyers who have lost their minds because of Trump’s winning the 2016 election and daring to serve as president for four years. I thought he was smarter than that, but he’s as bad as all the rest. What’s wrong with these people? For example, weren’t the Clintons both incredibly ill-tempered?

  6. I assume every president behaves kind of badly in office. I’m sure there are 1000 stories that go just like this (assuming this story is even true). That doesn’t excuse the behavior, but again, it doesn’t make Trump “particularly” bad. I think one of my biggest pet peeves is when people act like Trump is uniquely bad in American history. We have had bad presidents in history, and they’ve been crappy people privately as well. One of the few “good people” we’ve had as president in recent history is Jimmy Carter, but as a president, he sucked.

    • FWIW, we have a (conservative, somewhat older) friend who was POTUS/VP Secret Service for Carter-Mondale. He says Mondale was actually a very nice guy, but the Carters were “peculiar”, not wanting much interaction with the SS, even to the point of not wanting the agents to make eye contact with them.

  7. I’m currently serving on a grand jury and when someone offers us hearsay we’ve subpoenaed the person who allegedly said it. We’re not indicting anyone on hearsay.

    • Good for you.

      It is probably not required; RELIABLE hearsay can provide Probable Cause to support a charge. But, hey, just because it is good enough, it may not be good enough for you.


    • Sure. In the court system, that makes sense. If you follow the legal rules of hearsay, you would wipe out a large portion of history as forever gone. The standard is good generally, but you have to modify it for the world outside of the law.

  8. Andrew McCarthy knows that under the law, as it is applied outside of the opera buffa January 6 show trial, testimony cannot be accepted as true or even presumed to be true unless it is subject to fundamental procedural safeguards, e.g., cross-examination, the rule against hearsay. Any decent trial attorney, including Andrew McCarthy, would have shredded Ms. Hutchinson’s testimony beyond repair under cross-examination.

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