2 years ago
Last week, as revelations from the Jan. 6 committee generated renewed discussion about the merits of a criminal case against former President Donald Trump, the Justice Department took aim at a surprising target: the committee itself.
Following the committee’s first two public hearings this month, senior department officials sent a letter to the committee seeking access to the transcripts of interviews that the committee has conducted with the more than 1,000 witnesses who have spoken with investigators. The request itself was not new — it dates back to April — but the new missive adopted an oddly hostile tone that raised broader questions about the relationship between the two groups of investigators.
The department’s letter argued that it is “critical” for the select committee to produce the transcripts “of all its witness interviews” and that the committee’s “failure to grant to the Department access to these transcripts complicates the Department’s ability to investigate and prosecute those who engaged in criminal conduct in relation to the January 6 attack on the Capitol.” The transcripts, the letter added, are “not just potentially relevant to our overall criminal investigation but are likely relevant to specific prosecutions that have already commenced.”
The letter raised eyebrows among observers not only because of its sharp and insistent tone, but because it seemed to reflect broader, longer-running tensions between the committee and the department. Last fall, committee member Rep. Adam Schiff (D-Calif.) said that he “vehemently” disagreed with what he sees as the Justice Department’s overly cautious approach to its criminal investigation and to Trump in particular, and he blamed it on “a real desire on the part of the attorney general, for the most part, not to look backward.” As the department reviewed the committee’s referrals for criminal contempt charges against Trump chief of staff Mark Meadows, members publicly called out the department for what they saw as an unwarranted delay. And when the department ultimately declined to pursue charges against Meadows a couple weeks ago, committee chair Rep. Bennie Thompson (D-Miss.) and Vice Chair Rep. Liz Cheney (R-Wyo.) called the decision “puzzling.”
The letter from the Justice Department seeking the committee’s transcripts reflects an unusual level of tension between the two investigative bodies — the New York Times reported that “Democrats on the committee were stunned by the confrontational tone” — but the committee has legitimate reasons to be wary of handing troves of transcripts over in wholesale fashion right now. They are still conducting their investigation, and as Justice Department prosecutors know as well as anyone, anytime that investigators lose control over raw investigative material, there is no way to predict how it will be used and potentially misused.
Once the department comes into possession of this material, they will likely be obligated to produce at least portions of it to some of the 800-plus defendants who have been charged to date by prosecutors based on their involvement in the siege of the Capitol. Even with so-called “protective orders” in place that nominally prevent defendants from widely disseminating discovery from the government, there is no realistic way to ensure that defendants or their lawyers will not share this material with people who are not supposed to have access to it. That, in turn, might allow people to coordinate their stories, and it could disincentivize other people from coming forward to speak to the committee.
As for the Justice Department’s position, it is understandable that they would want this material, but the suggestion that they are entitled to it is dubious at best. In order to satisfy their discovery obligations to criminal defendants, prosecutors are required to produce (among other things) any exculpatory evidence in their possession, but this is not evidence in the department’s possession.
The department is used to getting investigative material from other executive branch agencies when it likes, which may have something to do with its imperious approach to the committee. If, for instance, prosecutors are conducting an investigation in parallel to an investigation by civil regulators concerning the same underlying conduct — such as a separate inquiry by the Securities and Exchange Commission or the Commodity Futures Trading Commission — Justice Department prosecutors can send a so-called “access request” to obtain information from the agency’s investigative file. But of course, Congress is an independent and coequal branch with its own institutional prerogatives, not simply another enforcement agency. And tellingly, the department’s letter cites no precedent or legal authority to suggest that the committee is obliged to hand over its work product.
Instead, the letter asserts that it is “critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations.” The implication is that the department wants to ensure that cooperating witnesses who may be key to ongoing prosecutions have not provided materially inconsistent accounts to congressional investigators in a way that would undermine the credibility of their claims to prosecutors, perhaps expose them to impeachment on a witness stand or, in the worst-case scenario, provide a basis to overturn a conviction if the conflict does not become known until after a trial.
This is a reasonable concern, but it is not the committee’s fault. In fact, this is one of the reasons that it was important from the outset for the committee and the department to coordinate their investigative work to minimize overlap and to develop appropriate information-sharing protocols, but the very public dust-up last week indicates that this did not happen in the way that it should have. The department has also suggested that the committee’s supposed recalcitrance may delay pending trials, but trials get delayed all the time, for reasons both good and bad. By itself, the adjournment of a trial is not the end of the world.
The committee has already sought to defuse the apparent tensions, with a spokesperson telling reporters last Friday that the committee’s members “believe accountability is important and won’t be an obstacle” to the department’s work. According to the Times, the committee “could start sharing some transcripts of witness interviews with federal prosecutors as early as next month.” In an interview on Monday, Schiff criticized the department’s indiscriminate request for the complete set of congressional transcripts as “unprecedented,” but suggested that the committee could accommodate prosecutors if they “particularize what they want.”
Perhaps above all, however, the Justice Department’s oddly combative approach to the committee may have something to do with the fact that there are now, more than ever, serious questions among the public about what the Justice Department has been doing for the last year-and-a-half. As committee member Rep. Zoe Lofgren (D-Calif.) put it in discussing the department’s request, “It just makes me wonder … what have they been doing over there?”
The committee’s hearings have produced important pieces of new information from witnesses at the highest levels of the Trump White House and reelection campaign, but the department could — and should — have been gathering this information itself all along. It has been clear since last January that the department had more than sufficient cause to conduct a wide-ranging investigation into the post-election conduct of Trump and others in his orbit. But the department and its most vocal supporters claimed that prosecutors needed to conduct their investigation by working their way up from the people who were present at the Capitol. This made little sense, and many people who have been watching the Jan. 6 hearings closely — featuring testimony from key insiders that has understandably spurred a slew of news stories about potential criminal conduct at the upper echelons of Trumpworld — now seem to agree.
There have been recent indications that the department has broadened its investigative ambit, but the expansion has come needlessly late, and there is no way to know whether and to what extent the delay will affect the outcome. That’s particularly true if Trump announces that he is running for reelection in 2024, at which point the department’s work will become considerably more complicated, as any investigation could look even more politicized. All the transcripts in the world can’t fix that problem.
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