The federal judge now overseeing President Donald Trump’s defamation lawsuit against the British Broadcasting Corporation has thrown out the network’s subpoena seeking testimony from Cassidy Hutchinson, the former aide to White House Chief of Staff Mark Meadows who became a key witness before the Jan. 6 Committee. In a brief order issued Thursday, U.S. District Judge Jeffrey Kuntz pointed out that Hutchinson is currently the “subject” of a Justice Department criminal investigation.
Kuntz acknowledged that the BBC wants to dig into the “mindset of President Trump and his closest advisors” around Jan. 6, but he said Hutchinson’s testimony “seems largely irrelevant to the narrow issue in this lawsuit,” among other problems with the request.
The network had subpoenaed Hutchinson in an effort to bolster its argument that Trump cannot “prove that he did not foment or incite the January 6 Capitol riot.” But Kuntz pushed back, writing that the defendants seem intent on trying to “relitigate and discover every aspect of the events of January 6, 2021.”
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“That is what the BBC attempts to do with Ms. Hutchinson,” wrote Kuntz, a Trump appointee, adding that “this case is about a documentary aired by the BBC and, specifically, an allegation that the BBC ‘spliced’ two statements together that were actually made more than 55 minutes apart.”
On top of the relevance issue, Kuntz noted that Hutchinson could face real legal jeopardy given her status as a subject of a Trump-era DOJ probe, which he said makes the subpoena one that “definitively” and “unnecessarily burdens a non-party such as Ms. Hutchinson.”
“Ms. Hutchinson testified for over thirty hours under oath before Congress. Her sworn testimony is available to both parties in this lawsuit. And, her testimony seems largely irrelevant to the narrow issue in this lawsuit,” the judge wrote, warning both sides against turning the discovery process into a “fishing expedition.”
“Now, facing a potential criminal investigation, Ms. Hutchinson has other reasons to avoid the deposition. And, the changes in circumstances mean she would invoke her rights under the Fifth Amendment if she was compelled to testify,” Kuntz added.
Still, the judge left the door open for the situation to shift. If it does, he said the BBC “must explain in great detail the specific circumstances that changed” before it could try issuing a “new subpoena.”
Trump filed suit against the BBC for $10 billion over the documentary “Trump: A Second Chance” after the network admitted the film “gave the mistaken impression that [he] had made a direct call for violent action” on Jan. 6, by splicing together “excerpts from different points” of his Ellipse speech out of chronological order.
In response, the BBC issued 47 subpoenas to third parties, requesting “[a]ll Documents and Communications Concerning the attack on the U.S. Capitol following the ‘Stop the Steal’ rally on January 6, 2021” — essentially the same records former special counsel Jack Smith relied on in his now-dismissed Jan. 6 conspiracy case against Trump.
A related battle is playing out in Washington, D.C., over whether to unseal executive privilege rulings tied to Smith’s grand jury investigation, part of a broader push by the BBC to undercut Trump’s case on the merits.
Kuntz previously served as a Florida state appellate judge, where he allowed Trump’s “Russiagate” lawsuit against the Pulitzer Prize board to proceed. An ethics complaint later surfaced alleging that Kuntz had reached out to GOP Sen. Rick Scott about interest in a lifetime judgeship while that appeal was still pending before him.
