But now we have Hutchinson’s testimony that Trump said he didn’t “f—ing care that they have weapons. They’re not here to hurt me” and that they would be going to the Capitol later. This is precisely the sort of “smoking gun” evidence needed to prove that the person speaking meant to incite imminent violence.

The DOJ will understandably be concerned that the Supreme Court — particularly the current court — would find that Trump’s speech was constitutionally protected by the First Amendment. But this evidence should be enough to make them at least consider an incitement prosecution. Before Hutchinson’s testimony, an incitement prosecution would likely fail to clear the high First Amendment hurdle. Now, it is at least a close call and something DOJ should seriously consider.

And to be clear, Hutchinson’s testimony would not be hearsay if offered by the DOJ at court against Trump. Statements by a “party opponent” are not considered hearsay, according to Federal Rule of Evidence 801(d)(2). In this case, Trump would be the DOJ’s “party opponent” in a criminal prosecution of Trump, and her testimony regarding Trump’s statements could be used against him in court.