This week, multiple outlets reported that the Justice Department has asked the House Select Committee to Investigate the Jan. 6 Attack on the Capitol to provide transcriptions of the witness depositions and interviews that it has conducted. The specifics have yet to emerge, but the request surely includes testimony and documents from former President Donald Trump’s associates.
Importantly, the department’s letter explained that the transcripts “may contain information relevant to a criminal investigation we are conducting.” While the committee’s resistance to immediate cooperation dominated reporting, it will be worked out in time, as these things almost always are. It should not overshadow the real story here: DOJ has signaled a new and significant stage in its investigation.
That is our takeaway as a former counsel for the first impeachment and trial of then-President Donald Trump and two former federal prosecutors, one of whom was also an acting attorney general.
There are three reasons we believe the DOJ revelation is such an important inflection point.
First, the investigatory train of accountability for higher-ups in the Trump administration appears to have left the station. Finding the truth about those at the top of national leadership who bear the ultimate responsibility for the attempt to overturn the 2020 election is the most important outcome of the Jan. 6 committee, even as it pursues its parallel purpose of developing legislation that might forestall similar seditious events in the future.
Legislation matters. But it must be accompanied by accountability for the misconduct that has made it necessary. Otherwise, the effort will be futile, and the same players, or their acolytes, will threaten our democracy again. And when one of the alleged culprits hints at a return engagement as chief executive, unless there is present accountability, the enforcement of remedial legislation in the future would be unlikely.
Those who would govern must know that there will be actionable consequences for malfeasance in office. Otherwise, corruption inevitably will reign with an iron hand and a steel boot.
Second, while Attorney General Merrick Garland has been criticized for the lack of visible action against Trump and other senior government officials, we have previously pointed to signs that the DOJ‘s investigation was actually climbing the investigative ladder toward those at the top. Still, there is a world of difference between implication and confirmation.
Thus, it is significant that the recent news suggests a new stage of the criminal investigation. The attorney general and his colleagues would not be asking for this evidence without confidence that his department is on firm ground in an extremely serious probe into the potential responsibility of leaders who might have participated in a conspiracy to violate our nation’s most essential laws.
Garland has a well-earned reputation for protecting the Department of Justice from charges of politicization. He would not risk its, or his, reputation in pursuing allegations of a previous administration’s criminality without a strong predicate for accusations of wrongdoing. Hence, the new letter raises high expectations. Garland has been around Washington long enough to know the risks of raising them falsely.
Notably, the select committee has spent considerable time and resources investigating the attempt that started immediately after the November vote to keep Trump in power, negating the election’s verified outcome. That involved an unlawful scheme to have Vice President Mike Pence reject or delay Joe Biden’s electoral victory certification. Thus, expectations are also raised that the DOJ is probing illegality in connection with that alleged pre–Jan. 6 criminal conspiracy.
Third, the Justice Department letter tells us that Garland understands that the clock is ticking toward 2024. Indeed, he has not chosen to hold off his request until after the select committee’s public hearings, scheduled to start June 9.
The new visibility of action does not mean that indictments of senior officials are certain, or that they might be expected quickly. We anticipate that progress will occur with deliberate speed. Assuming compliance with the DOJ request, and its gaining full access to the relevant materials developed by the Jan. 6 committee, DOJ will be able to continue its investigation even if upcoming election results enable a new Republican majority that acts to end the life of the committee.
For the present, Garland knows that there will be no immediate agreement with the committee on the timing and sequence of initial sharing of information, though upon any agreement, more transfers of information should quickly follow.
The committee has spoken to more than 1,000 witnesses and assembled more than 100,000 documents. The evidence comes from more than a dozen Trump White House officials, two of Trump’s children, planners of the Jan. 6 demonstration, and some of the Capitol invaders themselves.
As select committee Chairman Bennie Thompson told reporters, “We can’t give [prosecutors] full access to our product. That would be premature at this point because we haven’t completed our own work.” As we know from working on or with the Hill, the mechanics of agreement between executive and legislative branches can be complex, but it has to start somewhere. So we are not discouraged by the usual back-and-forth, even with a committee chair and administration of the same party.
Our view is that DOJ delivered its letter with keen timing as the committee’s investigative work is winding down. An earlier request disclosing an accelerating DOJ criminal investigation could have chilled cooperation from multiple possible targets of that investigation, individuals whose testimony is now on the record.
Lest we take for granted a system based upon the rule of law, both the executive and legislative branches appear to be working to find the truth and to ensure accountability under the law. If our constitutional republic is to survive the assault on it in the months after the November 2020 election, we need both legislative reform and prosecution of any who conspired criminally to end our democracy.
As of this week, there is clear indication that two trains of accountability are running on parallel tracks.