Merrick Garland has now shed more cases than a crab sheds shells. The first is the Mar-a-Lago documents case which he delegated (ineptly, in my view), along with the January 6 case, to Jack Smith, the special counsel.
The idea behind special counsels—and before that, the now defunct independent counsels such as Kenneth Starr—is that their appointment frees the Justice Department from charges that it has a conflict of interest. Under the rules of the Justice Department, the attorney general must first determine that a “criminal investigation is warranted,” and the “investigation would present a conflict of interest for the Department of Justice or other extraordinary circumstances” and it “would be in the public interest to appoint an outside Special Counsel.”
It’s mostly a quaint notion. While appointing a special counsel once quieted naysayers, it no longer does. Donald Trump already claims that Smith, his wife, and even his wife’s sister hate him. Just as the appointment of the impeccably credentialed former FBI director Robert Mueller bought no peace, Smith’s appointment won’t either.
That’s no reflection on Smith, a talented prosecutor who once headed the department’s Public Integrity Section. But his appointment won’t sate the critics and has only added to the delay in prosecuting the election case, which is now more than two years old. The Harvard-educated lawyer had been at The Hague, and was delayed in Europe recovering from a bicycle injury. Now that Smith is back he could readily indict Trump for the documents, possibly for the fake elector scheme, and inciting the insurrection of January 6. He ought to do it soon because the election—the proximate cause Garland cited for appointing a special counsel—is barreling toward us. The primaries kick off in a year.
Then, there is the former Trump-appointed former U.S. attorney Robert Hur, whom Garland just tapped as special counsel to investigate the papers found in Joe Biden’s Penn Center office and his Wilmington, Delaware home. The appointment of a special counsel is at the attorney general’s discretion, and it isn’t clear that Garland had to appoint a special counsel for the Biden papers either. Still, I suppose he had to, under the venerable legal principle that sauce for the goose is sauce for the gander. Hur is a solid enough citizen. He ran the U.S. attorney’s office in Baltimore and was a clerk for Chief Justice William Rehnquist, but the Department of Justice was perfectly able, with the help of FBI gumshoes, to figure out the Biden case.
There’s a fine line between being careful and being timid, and Garland gives the abiding appearance of timidity. Many prosecutors and former ones, such as I, wonder how the January 6 Committee could develop a brilliant case against Trump while Garland has done little more than shed the responsibility to a special prosecutor.
Garland’s mass prosecutions of Trumpist thugs and rabble-rousers have been welcome but insufficient. Going after some 900 pawns without a glance at the king who ordered them into battle is myopic. It has been two years—too long to justify the extraordinary delay with the excuse that he is building his case brick by brick.
True, Garland, like any prosecutor, hates to lose. He wants and needs ammunition. But the January 6 Committee has given him all the bullets he needs. Plus, he would likely get a jury verdict in the District of Columbia, where Trump won less than 6 percent of the vote in 2020. Were the defendant anyone other than Trump, a jury would have decided the case long ago.
To be fair, there are a few weak elements in the prosecution’s January 6 case, which have arisen because Garland has dithered. White House aide Cassidy Hutchinson is a prosecutor’s dream—a convincing figure, attractive, instantly likable, and, most importantly, in a position to know.
She was closer than an undershirt to former White House Chief of Staff Mark Meadows; she was inside the West Wing as the plot unfolded to undermine the peaceful transfer of power. Kevin McCarthy called her to vent when learning of Trump’s plan to lead the mob in person. She talked with Rudy Giuliani in the days before January 6 about the violence that loomed. Moreover, there is independent evidence, much of it on videotape, corroborating Hutchinson’s account.
The problem is that Hutchinson lied under oath about the incident when she first testified to the committee.
When she testified in February and March 2022, she stated she did not recall Trump grabbing the steering wheel of the presidential limo in an attempt to join insurrectionists. Other fireworks from her later testimony were also missing. In these earlier depositions, Hutchinson was represented by Stefan Passantino, a lawyer with deep roots in Trump World. He had been a White House ethics lawyer who was being paid for his time by Trump’s “Save America” PAC. Passantino, she claimed, counseled her to tell investigators that she did not recall certain things which she recalled only too well: “We just want you to focus on protecting the president.” Hutchinson testified that when she told Passantino during prep sessions about the incident between Trump and the Secret Service, Passantino told her, “No, no, no, no, no … We don’t want to go there. We don’t want to talk about that.” Passantino has denied any wrongdoing.
Hutchinson was riddled with guilt over her false testimony. In June, after retaining another lawyer, she testified publicly that she had heard that Trump had assaulted Secret Service agents, at one point lunging for the steering wheel of his SUV. She said to Passantino during a break in the earlier testimony: “Stefan, I’m f****d. I just lied… I lied. I lied, I lied, I lied.”
Hutchinson stated Passantino told her that saying she did not recall was not the same as lying since no one could prove the contrary. As Trump’s lawyer/mentor Roy Cohn used to advise his mob clients, “It’s no crime not to remember.”
No reputable lawyer would advise a client that testifying “I do not recall” when she did recall was less than lying.
Strikingly, Hutchinson was not the only witness from Trumpworld who could not recall relevant occurrences in testimony before the committee. As ABCNews noted, “according to the transcripts, the phrase ‘don’t recall,’ ‘don’t remember,’ or ‘don’t know’ came up more than 300 times” during Ivanka Trump’s interviews with investigators.
Leaving aside how the lie evolved, the lingering question is if Trump is indicted, does the admitted lie discredit Hutchinson’s testimony?
The excellent former federal prosecutor Elie Honig, writing for the “CAFE Insider” platform, visualizes how a defense lawyer might have a “field day” attacking Hutchinson’s credibility on cross-examination:
“You lied to the Committee, didn’t you? (Yes)
You knew you were testifying to the United States House of Representatives, right? (I knew that)
And you knew you were testifying under penalty of perjury, right? (That’s right)
Just like you’re under penalty of perjury now at this trial? (Yes).
But you lied. (Correct)
You knew you could get prosecuted and go to federal prison if you lied, didn’t you? (I did)
Yet you lied, anyway. (Yes)
“I lied, I lied, I lied, I lied.” Those were your words. (Right)
By the way: you haven’t been prosecuted for perjury, have you? Even though you lied. (No, I haven’t)
These prosecutors did you a favor. They could have thrown you in prison, but they gave you a free pass, didn’t they? (Well, I guess I haven’t been charged with anything)
But you did commit perjury. (I suppose so).”
Honig might have added, Were you lying then, or are you lying now?
On redirect, prosecutors would undoubtedly bring out that there are perfectly understandable and defensible reasons why Hutchinson lied in her first deposition. As she later explained to the committee, she was under enormous personal and financial pressure not to testify to anything that might harm Trump.
I believe the Garland/Smith team can handle the problem effectively if they ever get to court. Prosecutors take their witnesses as they find them. In multi-defendant conspiracy cases, as this one is likely to be, it is expected that the government witnesses are conspiracy members who have decided to cooperate with the prosecution. Often such witnesses have previously lied under oath. As a federal prosecutor, I often argued to the jury, “Conspiracies are conducted in secret by crooked people. Whom would you expect me to call as a witness, the Archbishop of Canterbury?”
Garland testified at his confirmation hearing that he would “begin with the people on the ground and we work our way up.”
Nothing wrong with this, but not if you do it to the exclusion of Trump and his seditious claque. As Honig observes: “DOJ absolutely could have [interviewed] key White House insiders back in, say, mid-2021, and kept witnesses like Hutchinson under wraps. The Justice Department has now spoken with all these witnesses, but it didn’t do so until mid-to-late 2022.” Delay never works in favor of the prosecution and the fact that it’s still an issue is the problem.