Jurisprudence

Why the Biden Administration Isn’t Going After the Big Fish for Jan. 6

Crowds around the U.S. Capitol.
These aren’t the only people to blame for Jan. 6. Brent Stirton/Getty Images

On a recent episode of Amicus, Dahlia Lithwick spoke with Walt Shaub, former director of the Office of Government Ethics, about recent developments from the Jan. 6 commission and Washington’s accountability gap. A portion of their conversation, which has been condensed and edited for clarity, has been transcribed below.

Dahlia Lithwick: Let’s just jump in on this split screen of Jan. 6. You have been incredibly critical of the slaps on the wrists that have been meted out to the lowest-level coup participants, while leadership, really from the top down, has been almost completely immune, not just from prosecution, but even from scrutiny. It seems as though the reporting last week maybe changed that. The New York Times reported that members of the Freedom Caucus were deeply involved in efforts to pressure the Justice Department to pressure state of officials to pressure Mike Pence himself to overturn the election results. We’re actually seeing texts that were sent to Mark Meadows on the day of Jan. 6 that seem to implicate kind of everybody. It now really feels like the calls were quite literally coming from inside the house. Is this different, has this changed, or are we just too far gone along the path of normalizing Jan. 6 to care?

Advertisement
Advertisement
Advertisement
Advertisement

Walt Shaub: What may have changed this past week was a sense on the part of the public that something’s happening, and maybe if we’re lucky, a wake-up call for the press that puts this back into perspective. We talk about the Jan. 6 insurrection—or the coup, or whatever we want to call it—as though it was a tussle. That seems to be the dominant narrative in terms of its tone, that this was just a thing that happened.

And if we step back and look at it, you had the outgoing leader who had just lost an election convene an event on the major parade ground of the nation in its capital after weeks of calling the election a lie and saying things like, “Jan. 6 is going to be huge,” and people bused in from all over. And then at his rally, a congressman, Mo Brooks, urges people to go and, as he put it, “Kick some ass,” and President Trump is screaming and Mo Brooks is telling people, “On your way home, go pay a visit to the Capitol.” And so then they did. Meanwhile, there was a noose hanging from a scaffolding outside. People scaled the walls of Congress. In most countries, you would have expected them to open fire on the crowd, and maybe after a few dozen fell down dead, the others would run away, and I’m not urging that people be killed, but I’m just trying to put it in perspective here that that’s the magnitude of this assault.

Advertisement
Advertisement
Advertisement

You had members of Congress hiding, one hiding in a closet hoping she wasn’t going to be murdered by people who talk about killing her, and a fellow member of Congress posted a cartoon video of him killing her. And you had them screaming that they should hang the vice president, and they beat a couple police officers almost to death, and one died on the way to the hospital. When the police were cornered and made one final stand and warned people not to come in, a terrorist burst through the glass, and the officer had no choice but to shoot her, and then she died. And you’ve got an entire segment of the population supportive of this coup attempt, cheering her on as though she’s some kind of a martyr for a cause. Well, the only cause she’s a martyr for is terrorism and fascism.

Advertisement
Advertisement
Advertisement

And you had the military withholding aid and leaving these Capitol Police officers grossly outnumbered, fighting for their lives for hours. And in this context, in this moment, we also now know that we had members of Congress putting enormous pressure on the Department of Justice and the vice president to reject the outcome of the election. We came so close to the republic ending that day, and we talk about it as a minor thing.

Advertisement
Advertisement

None of this came as a surprise. We knew it came from the top, both in the executive and the legislative branch. We knew there’s a deep conspiracy. We had the spectacle of members of Congress who participated in the plot and who were texting one of the chief protagonists objecting to these proceedings going forward. We are at an absolute crisis moment, and we’ve all been numbed by these light sentences, and this targeting of the lowest-level officials, and Merrick Garland’s timidity in pursuing any kind of higher-level actors in this conspiracy. And now we’re getting a vivid reminder just how high it went.

Advertisement
Advertisement

I saw somebody I respect on TV complaining that maybe the members of Congress should have withheld this information until their final report. That is a traditional line of thinking that so many people have and I think the world has lost perspective that this isn’t some traditional moment where we’re having a sober investigation where both sides are cooperating like in the 9/11 Commission. We are basically facing an ongoing attempt to overthrow the republic. And this was probably the most encouraging thing that I’ve seen to signal that the committee is serious. And I, frankly, had been losing a bit of hope in them, but this was encouraging. If nothing else, it serves as a reminder of just how serious this was.

Advertisement
Advertisement
Advertisement

This is the meat of what we’re trying to probe. And you, as somebody who has really been a crusader for government accountability, have been watching with dismay that the guys in the funny hats and the people who say silly things on Twitter and the guys who are taking selfies—it turns into this kind of Peter Sellers movie where it’s just these silly kids running amuck. Were they antifa? We don’t know. Were they really bad guys? We don’t know. Were they answering the call of their leader? Definitely not. There’s been this line between the folks who were, as we’re increasingly learning, deliberately engineering this in order to create leverage and pressure Congress and pressure Mike Pence, and everyone above the line has been immune from prosecution, has been immune even from scrutiny.

Advertisement

And what I’m hearing you say is that seems to be filtering up now, and I really feel it too, and it’s partly these texts to Mark Meadows, it’s partly the revelations about Jim Jordan by name, other members by name.

I do want to talk for one minute about congressional oversight because it does feel—having said that this week felt like an inflection point in terms of public understanding that it was not going to be sufficient to just hold the guys in the funny costumes and the furry vests accountable—it also felt as though the Jan. 6 committee is also taking very, very seriously the idea that we’re going to have to go up the chain here. Steve Bannon, John Eastman, Mark Meadows. This week, the House voted to hold Meadows in contempt of Congress. Meadows has just been doing comedy, suing the Jan. 6 committee, suing Nancy Pelosi, arguing privileges that he doesn’t have and that he’s already waived. Does it feel to you as though, as this escalates, Congress is taking very, very seriously that oversight means going after the big fish and following where that leads?

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

Yeah. And it’s been surprisingly successful. And I say surprisingly because what’s not surprising is the opposition Mark Meadows and Steve Bannon had put up, because why would they think any differently? Don McGahn, the former counsel of the president, resisted a congressional subpoena and the case went up and down the courts for two years, and even got one terrifying appellate court decision that made it sound like congressional oversight is now done forever.

Then the White House changed hands and the Biden administration continued defending Don McGahn and actually struck a devastating blow against Congress. The Biden administration forced the House to do a closed-door deposition of McGahn when what they had wanted was an open hearing appearance. And that was crucial to them because the public, at large, did not read the nearly 400-page Mueller report. And the public, afterward, did not read the Don McGahn deposition transcript, but the public would have watched evening news clips of Don McGahn in front of the camera being grilled by members of Congress. And the White House prevented that.

Advertisement

People may ask, “Why would they do that?” And the answer is simple: The executive branch likes executive branch power and dislikes legislative branch power. And while Trump had us on a highway to authoritarianism at 120 miles an hour, Biden has slowed the car to 6 or 15 miles an hour, but he has not turned the car around in the other direction. He is continuing the long march of presidents toward expanding presidential power at the expense of checks and balances.

Advertisement

So Mark Meadows and Steve Bannon have this example that they could drag it out for two years. Congress is almost surely going to change hands in a year, and so anything they can do to delay it will be a win for them. And they have nothing to lose because also they have tons of off-ramps. They could find themselves prosecuted and deep into the trial, agree to show up and testify, and then the court will probably moot out the case, or if it even pursues it, justice may agree to compromise with them.

Advertisement
Advertisement

So what’s amazing is, with that incentive and that ability, you have to ask yourself, “Well, why did hundreds of witnesses cooperate with the committee?” And the answer is because the system was never really built for all-out obstruction. And the fact that we’re on uncharted territory is a testament to how rare that has been, that level of noncooperation. And the level of belligerence of Trump appointees when they used to come and testify was astonishing to me.

It’s very hard to impose the most serious consequences, criminal prosecution, but it is less hard to destroy a reputation and career. And with Trump having lost the election, there’s enough uncertainty that there are people who are potential witnesses who have in the back of their mind, “Gee, the republic may continue, society may continue to exist, and I may be shunned, I may be untouchable by the big, lucrative lobbying firm, or big-time law firm, or whatever other place I want to work because I’m too controversial a figure.” For some of them, there still are the old-fashioned, soft reputational consequences that make them cooperate. For others, it’s remotely possible some of them are patriotic, and for others, some of them may be fearful that this has gone further than they ever thought it would, and some may have only joined the Trump team out of opportunism. Even when you have somebody terrible in charge, you have lots of people who see an avenue to have some power to do something they care about and they’re willing to be tainted by being affiliated with that individual.

Advertisement
Advertisement
Advertisement

So there are a lot of reasons people have cooperated, and the committee has been aggressive and has gotten an astonishing amount of stuff. That report, when they’re done, is going to be a real earth-shattering thing.

Advertisement

In some ways, I think it was a mistake to have Mueller, a prosecutor, conduct an investigation because a prosecutor is looking for provable crimes that you can prove beyond a reasonable doubt when maybe an inspector general type or an oversight commission of some sort that’s just trying to get at the truth would’ve been more effective. And so I wasn’t surprised that the Mueller report didn’t result in much.

This committee is going to come out with a report that will be far more willing to get into things that aren’t necessarily provable beyond a reasonable doubt but more likely than not happen. And that’s the standard normal people use in normal life. We have a higher standard for criminal law because we’re taking away people’s liberty, so we want to be sure. But in life, you make most of your decisions based on, “This is probably true.” So there’s a real chance it’ll be a better report in many ways than even the Mueller report.

And the one other thing I’ll say about that is Garland could have gotten a lot of this information a lot easier and a lot faster. There’s no indication that Garland is doing anything to go after the higher-level officials, and I have a very hard time believing there’s even any chance that he is. And so it’s again frustrating that this administration doesn’t seem to be up to the challenge of this very dangerous moment we’re in. Maybe that’s why this week has felt like such a gift after so much slogging through bad news to at least have some sign that somebody is taking this seriously at the higher levels.

To hear the entire discussion, listen below, or subscribe to the show on Apple PodcastsOvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.

Advertisement