The use of prior statements of a witness in an effort to discredit them is one of the most basic tactics of cross-examination at a trial. It is also one of the most effective, even with witnesses who would otherwise seem to have a great deal of credibility and little motive to lie or shade their testimony. That is why lawyers preparing for a trial spend an extraordinary amount of time reviewing key witnesses’ prior statements in minute detail, particularly if those accounts were given to government investigators or offices, in which case the witness has a particularly significant incentive to speak accurately and truthfully in order to avoid penalties for lying to the government.
The recent implosion of special counsel John Durham’s case against Michael Sussmann, a lawyer for the 2016 Hillary Clinton campaign, illustrates the point starkly. Before Sussmann’s indictment, the key witness against him — former FBI general counsel Jim Baker — had provided multiple versions of the relevant events to investigators in Congress and the Justice Department’s inspector general’s office that appeared to differ in slight but material ways. When Baker took the stand, he claimed he was “100 percent confident” about his recollection, but defense lawyers effectively exploited the apparent inconsistencies when they cross-examined him, ultimately contributing to Sussmann’s acquittal.
Hutchinson provided several interviews to the Jan. 6 committee before switching lawyers because she had more information that she wanted to share with the panel. That suggests that some of her most attention-grabbing testimony — perhaps Trump’s comments about armed supporters, his confrontation with his Secret Service protection, even the ketchup — may not have been in earlier accounts to the committee. If she were to be a witness someday in a criminal trial concerning these events, any competent defense lawyer will mine them for anything that might look like an inconsistency or omission — even if the relevant information had not been specifically sought by her questioners — in order to suggest that she is unreliable. (“In fact, you didn’t even tell the committee x, y, and z in your first few meetings, did you?” etc.)
Another witness who has already testified for the Jan. 6 committee presents a more striking version of the potential problem.
Richard Donoghue, the deputy attorney general in the waning days of the Trump administration, recently testified about a Dec. 27, 2020 conversation, in which Trump pressed Donoghue and then-acting Attorney General Jeffrey Rosen to investigate a litany of claims of election fraud. Donoghue testified at the televised hearing that he made it “very clear to the president what our investigations had revealed, and that we had concluded based on actual investigations, actual witness interviews, actual reviews of documents that these allegations simply had no merit.” He continued: “As the president went through them, I went piece by piece to say no, that’s false. That is not true. And to correct him really in — in a serial fashion as he moved from one theory to another.”
It sounded impressive, dramatic and consequential. One of the Jan. 6 committee’s theories of criminal liability is that Trump broke the law by lying about election fraud in order to prevent the certification, so Donoghue’s testimony about the call also sounded like it might provide an important piece of evidence that Trump knew his claims were false in the run-up to Jan. 6.
Donoghue’s account, however, did not entirely track an earlier version that he provided a year ago in an interview behind closed doors with the Senate Judiciary Committee, which investigated the same events. When asked about the same call, Donoghue testified that “the president did the vast majority of the talking.” On the subject of Trump’s various claims of fraud, Donoghue explained that “we sort of were taking the approach of saying, you know, ‘Yes, we’re aware of it,’ or if we’re not, admitting that, ‘Well, we haven’t heard that one before.’” According to Donoghue, he and the acting attorney general planned this ahead of time — agreeing beforehand that their strategy would “be to say to the president we’re doing our job. ‘Yes, sir, we understand. We’re doing our job.’ And try to leave it at that as much as possible.”
This did not sound quite like the brave truth-telling moment that Donoghue described in his televised appearance. Even if there are benign reasons for that, any decent defense lawyer would argue that Donoghue changed his story to make himself look better and Trump worse. Perhaps, the argument would go, he did so to enhance his public reputation and professional standing, or simply because the truth — that he was a top law enforcement official who, along with the acting attorney general, listened idly while Trump spouted dangerous nonsense — makes him sound ridiculous.
The details concerning Hutchinson and Donoghue’s prior testimony became public largely by happenstance. We do not know whether and to what extent other witnesses, whose prior testimony remains secret for the most part, would face similar questions if tested in a court of law.
This issue — the potential perils of important witnesses providing statements to different investigators — is well known to criminal investigators and prosecutors in complex cases. They try to avoid such problems by minimizing the number of times that key witnesses speak with other investigators. But it often arises when prosecutors are conducting a so-called parallel criminal investigation alongside a civil regulator, like the Securities and Exchange Commission, that wants to interview someone who may be important to a potential criminal case concerning the same underlying conduct.
Dealing with it can, in theory at least, be as simple for prosecutors as maintaining a healthy and collegial line of dialogue with their civil counterparts and asking them to hold off on interviewing certain people so they do not create a paper trail that could later be used by defense attorneys to impeach their credibility. This does not always go smoothly, since those other investigators have a job to do as well, and understandably, they do not love it when the Justice Department slows their work (even if they ultimately accede to the request).
There have been some notable coordination problems between the select committee and the Justice Department, but they seem mostly to be the department’s fault — and that appears to be true here, too. The New York Times recently noted that “it remains unknown if prosecutors are looking directly at Mr. Trump’s own involvement in subverting the election or inspiring the mob that wreaked havoc at the Capitol,” but after Hutchinson testified, the paper reported that federal prosecutors working on the office’s Jan. 6 investigation “watched the aide’s appearance” and “were just as astonished by her account … as other viewers.”
DOJ officials blamed the fact they felt “blindsided” by the committee’s unwillingness to provide all of the videos and transcripts of its interviews, but in fact, the anecdote reflects more poorly on the Justice Department than on the committee, since it suggests that prosecutors failed to uncover Hutchinson’s testimony themselves despite her being readily available to them.
It would be too simple to suggest this problem was entirely avoidable, but it could have been mitigated if the Justice Department had immediately undertaken a concerted investigation into the conduct of Trump, along with those closest to him in the White House and his reelection campaign, and then explained as much to the committee (and, ideally, to the public). We have all instead been left substantially in the dark about the scope of the department’s investigation, leading many people to express the same frustration shared by some of the committee’s own members.
One of them, Rep. Zoe Lofgren (D-Calif.), had a particularly apt response over the weekend to the Justice Department’s reported unhappiness over Hutchinson’s testimony. “I was surprised that the prosecutors were surprised,” she said. “What are they doing over there?”
It’s a good question.