Grand Jury Declines to Indict Cassidy Hutchinson, but the Justice Department Can Try Again

A federal grand jury in Washington refused on Tuesday 27 October to indict Cassidy Hutchinson, the former White House aide whose 2022 testimony to the House January 6 committee the Justice Department had been investigating. The refusal, a “no bill,” does not stop the department from trying again.

Two people familiar with the matter told the Associated Press that the grand jury had “rejected prosecutors’ request to return an indictment.” NBC News, citing a senior US official, reported that the panel returned a no bill, that it had heard evidence in early October, and that the case was brought by the department’s Civil Rights Division, which is headed by Harmeet Dhillon. In a brief court appearance, a department lawyer told US Magistrate Judge Zia M. Faruqui that the grand jury “had not concurred on the proposed indictment,” according to The Washington Post’s account as quoted by Mediaite. He did not name the defendant. Ms Hutchinson declined to comment through her lawyer, the AP reported, and the department did not immediately respond to NBC.

What prosecutors alleged is not public. “Details of prosecutors’ allegations against Hutchinson were not immediately clear,” the AP wrote, but Republican lawmakers had accused her of lying under oath about President Trump’s conduct on 6 January 2021. She has maintained that her testimony was truthful, NBC reported.

What does a grand jury actually have to find?

Probable cause, by at least twelve votes. A federal grand jury “must have 16 to 23 members,” and it “may indict only if at least 12 jurors concur,” under Rule 6 of the Federal Rules of Criminal Procedure. The Post described the standard as “a relatively low threshold”: prosecutors “only need to convince a majority of grand jurors that there is probable cause that a crime was committed.” The defence is not in the room, and no judge presides over the presentation. (This publication has set out before why the grand jury is a screening device, not a trial.)

The same rule says what happens when the votes are not there: “If a complaint or information is pending against the defendant and 12 jurors do not concur in the indictment, the foreperson must promptly and in writing report the lack of concurrence to the magistrate judge.” The reporting does not say whether any charging paper was pending against Ms Hutchinson, and none has been made public. A no bill is a vote on a draft. It is not a verdict, no jeopardy attaches to it, and Rule 6 sets no limit on how many times a matter may be presented.

What stops the department from trying again?

Its own manual, and only until someone signs. Section 9-11.120 of the Justice Manual, headed “Approval Required Prior to Resubmission of Same Matter to Grand Jury,” provides that once a grand jury “returns a no-bill or otherwise acts on the merits in declining to return an indictment, the same matter (i.e., the same transaction or event and the same putative defendant) should not be presented to another grand jury or resubmitted to the same grand jury without first securing the approval of the responsible United States Attorney.”

Two features of that sentence matter here. It says “should,” and the Manual is the department’s internal guidance, not a statute or a court rule. And it gives the approval to “the responsible United States Attorney,” while this case, according to NBC, was brought by a division of the department rather than by a US attorney’s office. The section does not say who approves when the presenting lawyers answer to an Assistant Attorney General. That is a question of internal administration rather than law, and the department has not said how it reads it.

Which rules bind a second attempt?

Only one of the three is law that a court enforces as written. The table is this publication’s comparison of the texts quoted above.

How long does the department have?

Until five years have run from whichever statement it says was false. The general federal rule, 18 U.S.C. § 3282, bars prosecution of a non-capital offence unless the indictment is found or the information instituted within five years. No report has identified a statute with a longer period that would apply. Ms Hutchinson’s testimony to the committee was given in 2022, the AP reported, so on this publication’s arithmetic every part of it reaches the five-year mark at some point in 2027. Which session the proposed indictment concerned has not been reported, so the exact date cannot be fixed.

This publication wrote on 27 October about another case in which the department filed a prosecutor’s information on the last day of a limitations period instead of waiting for a grand jury. The device exists here too, but an information cannot take a felony to trial unless the defendant waives indictment.

How unusual is a refusal?

Unusual in general, less so in Washington this year. “It’s highly unusual for grand juries to decline to return indictments,” the AP wrote, “but the Justice Department under Trump has been rebuked by citizens in the nation’s capital in a number of high-profile cases.” The AP and the Post both cite a grand jury in Washington that declined, in February according to the Post, to indict six Democratic lawmakers over a video urging service members to reject orders they believe to be unlawful. NBC also listed Letitia James, the New York attorney general, whose indictment it said had been denied three times.

The testimony at issue is Ms Hutchinson’s account of Mr Trump on 6 January, including a story about the presidential vehicle that she acknowledged was secondhand. In 2024 House Republicans released a transcript in which the Secret Service driver said Mr Trump “never grabbed the steering wheel,” the AP reported; the same account corroborated his attempt to go to the Capitol. Mr Trump called her a “total phony” at the time. None of that is on the record of the grand jury, which keeps its own secrets.

Twelve votes were needed on Tuesday. All the public record holds is what the department told the magistrate judge: that it did not get them.