A Justice Department under President Donald Trump would face an uphill battle in any effort to prosecute former White House aide Cassidy Hutchinson over her January 6 testimony, according to a former federal prosecutor who appeared on CNN.

Berit Berger told CNN anchor Pamela Brown that to obtain charges of lying to Congress, prosecutors would have to show that Hutchinson knowingly made false statements with the intent to deceive lawmakers.

"Perjury cases are historically very difficult to prove," Berger said. "Here, this is not the best of cases."

Her remarks came after a Punchbowl News report on Thursday stated that prosecutors had presented evidence to a federal grand jury in Washington and are seeking an indictment against Hutchinson over her highly explosive testimony about Trump's behavior during the Capitol attack in 2022. The grand jury stage turns on probable cause — a far lower threshold than the proof of knowing falsity that a conviction at trial would require, which is where Berger's concerns about intent would carry the most weight. Whether the grand jury returns an indictment will mark the next procedural step in the case.

Hearsay at the Center of the Case

Berger argued that a central weakness lies in the nature of Hutchinson's account.

"Cassidy Hutchinson was not recounting information that she had experienced firsthand," she explained. "She was admittedly talking about things that had heard — hearsay, essentially."

Hutchinson, who worked as an aide to Mark Meadows, then White House chief of staff, gave that account in public testimony before the House select committee investigating the January 6 attack. She said Anthony Ornato, a senior official on the White House security team, told her that Trump became furious after his Secret Service detail refused to take him to the Capitol on January 6. According to Hutchinson, Ornato described Trump reaching toward the steering wheel of the presidential vehicle and lunging at Secret Service agent Bobby Engel.

She never claimed to have witnessed the incident herself. The driver later disputed that account, saying he saw neither Trump lunging toward the front seat nor reaching for the steering wheel.

Berger pointed out, however, that contradictory accounts alone would not be enough to prove Hutchinson deliberately lied to Congress.

"Essentially, it's going to be a he-said-she-said," she said. "She says, this is what the person told me. It's not, did this actually happen? Did this person tell me that?"

She described the prospect of prosecution as "a really uphill climb" and said it would be "a really difficult case for them to ultimately substantiate."

According to The Washington Post, the Justice Department's Civil Rights Division is overseeing the investigation. Earlier this year, Republican Representatives Jim Jordan of Ohio and Barry Loudermilk of Georgia referred Hutchinson for prosecution on the grounds that she gave false testimony. A congressional referral does not compel charges; the decision to indict rests with prosecutors and the grand jury.

Separate Allegations Against Kimberly Guilfoyle

In the same CNN interview, Berger also addressed the accusations involving Kimberly Guilfoyle, who serves as Trump's ambassador to Greece.

Brown asked Berger directly whether the allegations suggest a possible crime.

"From what you know, do you see a possible crime here? What do you make of this?" Brown asked.

"Yeah, I mean, we need a lot more information," Berger responded. "But this is certainly something that should be investigated. We do not want our public officials offering access to the highest bidder."

The Journal reported that Guilfoyle asked Deters to send $100,000 directly to American Express to help cover her credit card bill; in a message allegedly sent, she indicated the payment would not leave a paper trail.

"It won't show up anywhere if you wire money to American Express," Guilfoyle allegedly wrote.

Deters, a former Kentucky congressional candidate, had sought her help with legal and tax matters. He told CNN's Jake Tapper that Guilfoyle offered to be his "ride or die forever in the Trump administration" if he assisted her. Deters said he did not make the requested payment.

Berger said a central question for investigators would be what, if anything, Guilfoyle promised in return.

"Was she promising that policy decisions would go his way? Was she promising that he would get access to people like the president?" Berger asked. "Public officials are not allowed to do that. This has all the hallmarks of a quid pro quo."

That framing tracks federal bribery and gratuity statutes, which bar public officials from seeking or accepting anything of value in exchange for official action.

Brown pressed Berger on whether simply offering such an arrangement could be criminal even if Guilfoyle never delivered any favors.

"There has to be some sort of a material step that's taken," Berger said.

She added that investigators should examine whether similar offers were made to others and whether "any kind of concrete steps" were taken to grant benefits.

According to The Journal, Deters had earlier paid Guilfoyle $300,000 for appearances, and the promised favors did not materialize.

The allegations have prompted congressional Democrats to demand an investigation. Guilfoyle's attorney has questioned the authenticity of the messages. Guilfoyle has not been charged with any crime.