Under investigation, Cassidy Hutchinson

“Why the Cassidy Hutchinson Investigation Should Make Us Very Uncomfortable,” Civil Discourse

I don’t know Cassidy Hutchinson, the former deputy to Trump Chief of Staff Mark Meadows, who flipped and became a star witness during the January 6 Committee hearings and who is now reportedly under investigation. I don’t have an independent basis for knowing whether she was completely truthful when she testified. Certainly, then-Congresswoman Liz Cheney and committee staff thought she was on the up and up, or they wouldn’t have offered her testimony.

But my view is that if prosecutors have a reasonable suspicion that a crime was committed, they should investigate. They may either clear the subject’s name or move on to more serious investigation and even prosecution if the facts and the law warrant it. That’s how the system works. Regardless of who the person is.

The problem these days is that my view is based on the old rules, where we could assume the Justice Department operated on time-honored ethical principles. This one doesn’t. So until we hear that there is evidence that substantiates the claim being bandied about, I have concerns about how this investigation is proceeding.

First off, DOJ doesn’t typically announce that it has opened a criminal investigation. Maybe that didn’t happen here. But The New York Times ran a story on Tuesday that it had, “according to four people familiar with the matter.” It’s possible, but unlikely, that all four of those people were Hutchinson’s lawyers. For one thing, it doesn’t benefit her to have her name dragged through the mud, one of the reasons DOJ doesn’t announce it’s investigating an individual. And it seems unlikely that all four sources would be her lawyers. We don’t know for certain that DOJ or someone else in government leaked the investigation, but the circumstances raise the first red flag.

That takes us to the second red flag. This is reportedly an investigation into perjury, a core crime prosecutors in U.S. Attorneys’ offices look into. A perjury case that occurred in the District of Columbia would normally be investigated by the U.S. Attorney’s office for the District of Columbia. That office has prosecuted other cases involving testimony before Congress, like the one against Peter Navarro for obstruction. The now-failed perjury before Congress case against former FBI Director Jim Comey was brought by a U.S. Attorney’s office.

It’s possible that lawyers in Main Justice might be asked to help out if a case is particularly complicated. That would likely involve the Public Integrity Section, which can help U.S. Attorney’s offices handle prosecutions of political figures anywhere in the country. Or at least, it used to.

Last June, the White House gutted the Public Integrity Section. The office is down to 5 lawyers, instead of the 30 experienced prosecutors who were there until Washington directed the then-U.S. Attorney in the Southern District of New York to close the prosecution of New York Mayor Eric Adams, so they could recruit him as an ally for Trump’s mass deportation policy. She declined, triggering resignations and firings in both her office and in the Public Integrity Section. That means an investigation like this should be conducted by the U.S. Attorney in D.C.

But that’s not where the Hutchinson investigation sits. Instead, it’s being conducted by the Civil Rights Division. We discussed the current Assistant Attorney General in charge of the Division, Harmeet Dhillon, here. I spent 25 years at DOJ, and I’ve handled a variety of civil rights matters. I’m unfamiliar with any authority that gives the Civil Rights Division the ability to handle a perjury investigation that has nothing to do with a civil rights matter.

Although the Civil Rights Division’s org chart (and its website!) have undergone considerable change in the past year under Trump, the laws it has the authority to enforce haven’t changed. There is both a civil side to the Division that brings lawsuits to enforce laws like the Civil Rights Act of 1964 and the Americans with Disabilities Act and a criminal side that prosecutes civil rights conspiracies, police excessive force, hate crimes, and other civil rights violations.

Nowhere is there authority to investigate a former White House staffer for perjury, based on a referral by a member of Congress.

That brings us to a third red flag, and one that makes it imperative to scrutinize the legitimacy of this announced investigation: this Justice Department’s long line of failed Trump revenge prosecutions, from Jim Comey to New York Attorney General Letitia James, to six members of Congress who reminded the military not to follow illegal orders, to Jerome Powell, head of the Fed. There’s also the ongoing grand jury investigation in Miami looking into people, including former CIA Director John Brennan, which reportedly involves testimony Brennan gave before Congress. (It’s hard to figure out how prosecutors in Miami have jurisdiction over that one; perhaps something about Trump’s residence in Mar-a-Lago, and Judge Aileen Cannon is there.)

An investigation into Hutchinson can’t be viewed without considering this context. DOJ has undertaken a revenge agenda for the boss, and Pam Bondi, who reportedly authorized opening this matter while she was fighting to save her job, knew she was under fire for colossal failures to deliver results in that regard. Absent actual evidence against Hutchinson, it’s hard to accept that this matter is legitimate. And the time for that proof would have been when a grand jury indictment was obtained and announced—not during the preliminary stages in an investigation that may or may not pan out.

You don’t have to be a former prosecutor for this situation to give you pause. If competent prosecutors have credible reason to suspect misconduct by Hutchinson, then investigation is warranted. But there are a lot of ifs there.

DOJ has a serious job to do. The Civil Rights Division has a serious job to do. Pacifying a petulant president who wants to take revenge against his perceived enemies shouldn’t be a part of it. But here we are. Again. There is no longer a presumption of regularity for this Justice Department—either in court or in the court of public opinion. Skepticism is now the order of business.