• Show Notes

Dear Listener,

Many people have made up their minds that the former President should be a future defendant. If you’re in this camp, I’m writing especially for you this week. If you believe, as I do, that the January 6th Committee laid out a sufficient predicate for DOJ to get serious about prosecuting Trump, it’s important to also be aware that critical investigative work remains undone. There’s a gap at the heart of the evidence that needs to be filled before final decisions can be made about whether, and who, to prosecute.

The gap involves witnesses to the former President’s conduct whose testimony haven't been obtained yet. A surprise witness can create reasonable doubt at trial. So, prosecutors must be thoroughly prepared. Cassidy Hutchinson was reportedly a witness whose testimony caught DOJ off guard. There may be others like her out there who DOJ needs to identify, as well as witnesses who are known, but whose testimony is unknown. And some of those witnesses are likely to be hostile to the government. No savvy prosecutor would indict a case like this one without closing the gap. 

The known unknowns include the lawyers Trump surrounded himself with: the whole Kraken crew of Rudy Giulianis and Sidney Powells. They’ve made public statements and even testified before the January 6th Committee or filed pleadings in cases where they’ve been sued or faced ethics challenges. But prosecutors still need to assess testimony, especially that of hostile witnesses, for themselves. Are they going to be witnesses for the defense? Does their testimony insulate the former President from responsibility or impede DOJ’s ability to prove guilt beyond a reasonable doubt? Perhaps one of the lawyers might testify that Trump really believed in election fraud, that they told him a tale so convincing that he thought members of his campaign staff and even his own attorney general were lying to him. They might testify that in the meeting on December 18th, when voting machines were discussed, the former President was desperate to protect the integrity of the election.