The Justice Department is virtually certain to try to indict Cassidy Hutchinson, a former Trump White House aide and a key January 6 witness. And if Donald Trump’s prosecutors do attempt to abuse the legal process to pursue this particular political vendetta — one of many in this DOJ’s “Lock her up!” era of criminal enforcement — they’ll ultimately fail in the courts. Again.

The first and most fundamental problem with a potential perjury indictment of Hutchinson is that prosecutors almost certainly can’t carry their burden of proof. The gist of the Justice Department’s grand jury probe (first reported by Punchbowl News) is Hutchinson’s June 2022 testimony to Congress that a Secret Service agent, Tony Ornato, told her about a January 6, 2021 incident in which Donald Trump demanded that the Secret Service drive him to the U.S. Capitol building and physically lunged at the driver or the steering wheel of his armored car when the Secret Service refused. Trump has furiously denied that any such thing ever happened. 

Here’s the key point: Hutchinson did not claim that she witnessed this event. She testified only that Ornato told her about it. The question, then, is not whether the scrum inside the armored car actually happened. The question is whether Ornato told the story to Hutchinson. Hutchinson claims he did; Ornato, a fierce Trump loyalist who broke ordinary Secret Service protocol by serving as a White House security official, has denied Hutchinson’s account. 

It’s a literal she-said, he-said. And there’s essentially no way prosecutors can prove that Hutchinson lied – in other words, that Ornato never told her the story about the armored car – beyond a reasonable doubt. Even if prosecutors could somehow establish that Ornato was a more believable witness than Hutchinson, and that she probably lied, that’s still not even close to a prosecutable case.

If anything, the available indicators suggest Hutchinson told the truth, and Ornato is the one who’s fudging. After hearing testimony from dozens of witnesses, including Hutchinson and Ornato, members of the January 6th Select Committee from both sides of the aisle concluded that Ornato had serious credibility problems. 

And Ornato has a history of gossiping with his White House colleagues and then denying it in public. In a separate incident, former Trump White House staffer Alyssa Farah Griffin posted on social media in 2022 that Ornato had lied to the press about a conversation she had with Ornato and Mark Meadows inside the White House. (Disclosure: Griffin is a CNN colleague and friend of mine.) Another former Trump White House staffer, Keith Kellogg, claimed Ornato told him that the Secret Service was planning to move Vice President Mike Pence to Joint Base Andrews on January 6th. Ornato later denied publicly that he had said any such thing to Kellogg. (Sound familiar?) So either three of Oranto’s colleagues  independently fabricated stories they claimed he had told them, for no apparent reason – or Ornato is an inveterate office busybody who denies his behind-the-scenes statements when they become public.  

It’s not at all clear that prosecutors will be able to clear even the low bar posed by a grand jury, which technically requires only a showing of “probable cause” to obtain an indictment (though Justice Department policy has long counselled that prosecutors should not seek an indictment unless they believe the evidence will probably be sufficient to secure and sustain a conviction beyond a reasonable doubt). And Trump’s Justice Department has largely forfeited its credibility in the nation’s capital. DC grand juries have recently rejected a string of proposed indictments, including one against Senator Mark Kelly and Democratic lawmakers who posted an online video reminding soldiers that they have the right to refuse illegal orders. And trial juries have returned not-guilty verdicts in politically charged cases, including the trial of the DC protester who chucked a Subway salami sandwich at a federal agent. Don’t be shocked if a grand jury declines to charge Hutchinson. And if they do indict, there’s next to zero chance that a trial jury will unanimously find her guilty beyond a reasonable doubt. 

That’s assuming a hypothetical Hutchinson indictment even reaches trial, which seems doubtful. Her legal team will have a textbook motion to dismiss based on vindictive prosecution – when a person is charged criminally after and in retaliation for exercising some legal right or process. Here, Hutchinson testified against Trump and now faces reactionary prosecution for it. 

And the president has provided Hutchinson’s defense with stark evidence of his own personal animus towards her. He has publicly expressed disdain for Hutchinson (a “total phony and ‘leaker,’” among other putdowns). And, just in case there was any doubt, Trump explicitly called for Hutchinson’s prosecution in 2024: “Has she now changed her testimony? Will she be prosecuted for what she did and said? What about the Unselect J6 Committee. They destroyed almost everything, including real evidence and findings. What’s going to happen with them – Serious crimes have been committed?” (Joe Biden, seemingly wary of Trump’s threat, preemptively pardoned all the Committee members – but not witnesses like Hutchinson – on his last day in office.) 

If there’s any doubt about what DOJ leadership might do, consider the recent reporting from Sarah Fitzpatrick at The Atlantic that Attorney General Todd Blanche and FBI Director Kash Patel are feeling the heat because Trump wants more scalps. One former official told Fitzpatrick, “The president wants indictments. He wants people in handcuffs… no matter how thin” the supporting evidence might be. Far be it for Blanche and Patel, both of whom have risen to the heights of law enforcement by indulging the president’s worst retributive instincts, to take a principled stand.  

The story is nothing new: Trump issues a call to prosecute his political enemies, Blanche and Patel spring to attention and cobble together some preposterously flawed criminal investigation or charge, which promptly collapses once tested by a grand jury or in a court: Letitia James (three times), James Comey (twice), Kelly and his Democratic colleagues, Don Lemon, Jerome Powell, Kilmar Abrego Garcia. None of these cases have resulted in a conviction, and none will. 

A Hutchinson prosecution might produce a fleeting retributive endorphin rush for Trump and his enablers. But in the end, it’ll wind up on the same scrap heap as all the others.