President Donald Trump's administration is now considering a federal indictment of former White House aide Cassidy Hutchinson, on charges that she lied to the House January 6 Committee when describing what she heard about Trump's actions during the attack on the U.S. Capitol.
But such a case would be essentially impossible to win, former federal prosecutor Elie Honig told CNN's Anderson Cooper on Thursday evening.
"Do you think [the grand jury] would indict?" asked Cooper, noting that federal grand juries are notoriously easy to win even frivolous indictments from. "But what she was saying was secondhand. She's not saying she saw that."
Honig agreed, calling this a "key" fact that undermines the case.
"I think if DOJ tries to bring this case, it will be ridiculously weak," he said. "I think it will be doomed to fail for exactly that reason. Cassidy Hutchinson did not testify; I witnessed this event. She said [Secret Service official] Tony Ornato told me about this event."
For that reason, he said, "The question is not did that event happen inside the White House? It's just, did this conversation happen between Hutchinson and Ornato?" And that, he said, really comes down to a he-said/she-said issue.
"You will not get a conviction as a prosecutor in a 50/50 case," said Honig. "It has to be proof beyond a reasonable doubt that Cassidy Hutchinson is lying." Making matters worse for the DOJ, said Honig, Ornato "has a history" of denying conversations other White House officials say happened, with two other people making claims about conversations they had with him. "So either all three of these people are just fabricating these conversations, or Ornato is the white house busybody who has these conversations, and then when they come out, denies them."
"It's an unwinnable case," Honig concluded. "Doesn't mean they can't try to indict it. It's easy to indict in front of a grand jury, but they're not going to win."
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