June 29, 2022

Let's take a closer look at Cassidy Hutchinson's Secret Service claim

It seems to me that the Secret Service and the commentariat are misfiring in their claimed contradictions of Cassidy Hutchinson. If there is a proper target of criticism (and that’s not clear at this point), it is the House January 6 committee, not the witness.

In the course of her riveting testimony Tuesday, Hutchinson described minor physical skirmishes between President Trump and two agents from his Secret Service security detail. These were said to have occurred in the car as Trump was driven away from the Ellipse after his fiery January 6 speech. (When I say “minor,” I mean no one is said to have applied force strong enough to cause serious harm, not that a physical altercation between a president and a federal agent would be a minor matter.)

Furious that the agents refused to take him to the Capitol (because doing so would have been too dangerous, for a lot of reasons), Trump was said to have lunged from the back seat to grab the steering wheel. The head of his detail, Agent Robert Engel, allegedly put his hand on the president’s arm to get him to stop, whereupon Trump is said to have swung his free hand at Engel’s clavicle area, after which things calmed down.

Secret Service sources, and unidentified media sources said to be informed of its version of events, are signaling that the agency will dispute the version of events given by Hutchinson. Perhaps Secret Service will deny that any physical altercations occurred. It is not clear yet whether anyone has denied it under oath. It has been reported that Agent Engel has been deposed by the committee, but no video or transcript has been released, so we have no idea what he said, or even whether he was asked about what happened in the car.

Here is the salient point: Hutchinson never claimed to have seen any of this. She was neither in the car nor in a position to have viewed it from the outside. She was very clear that she was told this version of events, and that she was simply relating what she was told. If it turns out that Secret Service witnesses, in particular Engel and the unidentified driver, testify that it did not happen the way Hutchinson described it, that would not contradict her. Nor would it necessarily mean she was not told what she says she was told.

Now, about that. Some commentators are dismissing her description of what happened in the car as hearsay. That is part irrelevant and part inaccurate.

To begin with, the federal rules of evidence do not apply to congressional proceedings. They also never apply to investigations, which is what the committee says it is conducting. The point of an investigation is to search for reliable, admissible evidence. For that, hearsay is not only allowed but encouraged — it’s often how we find out who has a probative, firsthand account.

Furthermore, I am not even sure Hutchinson’s testimony in this regard would be inadmissible as hearsay if the rules of evidence did apply.

Hutchinson said she was informed about what (allegedly) happened in the car only minutes later by Tony Ornato, who ran security at the White House. Ornato was not speaking idly. He was reporting what happened to a top aide (Hutchinson) of the White House chief of staff (Mark Meadows), Ornato’s superior. Most significantly, if Hutchinson’s version of events is correct, Engel was with Ornato as he described what happened.

If Engel was present, engaged, and listening to what Ornato said, and the circumstances were such that, if Ornato got details wrong, Engel would naturally be expected to correct him, then Ornato’s words were by implication Engel’s words, as if he had spoken them himself. It would not be simply a matter of someone telling Hutchinson what that person saw Trump do; it would essentially be Engel telling Hutchinson what Engel did with Trump.

In any event, obvious questions arise out of this, none of which necessarily cast doubt on Hutchinson’s testimony — which, again, is that she was told these things happened; she’s not in a position to say that they did happen.

Do Ornato and Engel acknowledge that they met with Hutchinson as she said they did?

Did Ornato provide the version of events that Hutchinson described?

Was this a version of events that Ornato got from Engel?

Was Engel paying attention when Ornato described what happened to Hutchinson?

Did Ornato accurately recount what Engel had told him moments earlier?

If Ornato did not accurately recount what happened, did Engel object or try to clarify? And if not, why not?

Did anyone take notes, either contemporaneously or afterward?

There are other salient questions, but they are better directed to the committee. For example, given that, with great fanfare but with no cross-examination, it has presented wide-ranging testimony from Hutchinson, will the committee now publicly release the deposition testimony of Engel — at the very least, any relevant portions related to what happened in the car and how it was reported to the White House staff?

Was Engel asked about what happened in the car? If not, why not? If so, was Engel’s testimony consistent with Hutchinson’s? If not, why didn’t the committee confront Hutchinson with Engel’s different version of events? And if the committee has access to testimony from federal agents who can give first-hand testimony about what happened in the car, then why elicit the testimony from Hutchinson, who wasn’t there?

Also, has Ornato been interviewed? Is his testimony consistent with Hutchinson’s?

To be clear, I am not accusing anyone of wrongdoing. In my experience, when various witnesses who have little or no motive to lie provide different versions of events, there are usually innocent, rational explanations for this — they had different perspectives on the relevant events, what was important to one may not have been to others, the memories of some may be better than others, and so on. Moreover, if vice chairwoman Liz Cheney and other committee members believed Hutchinson was giving truthful, accurate testimony, and they were unaware — even after speaking to Engel (and perhaps Arnato) — of other information that contradicted Hutchinson, it is understandable that they would present Hutchinson’s testimony the way they did.

We shouldn’t leap to the conclusion that anyone is lying. But we should be provided with all of the relevant testimony. And, contrary to the committee’s practice, there should be probing cross-examination so we can get to the bottom of any discrepancies.

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