For all the powers given to federal prosecutors — including grand jury access and FBI cooperation, to name a few — a House committee increasingly appears to have them beat.
In April, federal prosecutors went to the House Jan. 6 Committee with a request: could it have transcripts of interviews that the panel had conducted in the course of its investigation?
It was an unusual query, given the many investigatory tools available to federal prosecutors. Since then, reports from the New York Times have suggested that prosecutors working the Jan. 6 investigation learned new information from Cassidy Hutchinson’s televised testimony at the same time as the public, and were just as surprised.
Those reports — combined with an impression that DOJ started with a narrow focus on January 6 itself, sidestepping the broader attempt to overturn the election — have shocked some former DOJ officials, and left others questioning what might be going on.
Some feel that the department has moved lackadaisically on what’s arguably one of the most important criminal investigations in American history: an open and brazen attempt to subvert the results of a democratic presidential election.
“The DOJ’s approach to this case seems to be entirely defensive and backward,” Paul Pelletier, a former acting chief of the fraud section in the DOJ’s criminal division, told TPM.
In recent days, Andrew Weissmann, a former fraud section chief and Mueller prosecutor, has also suggested that the DOJ’s investigation into Jan. 6 has proceeded aimlessly.
“We’re in a very unusual situation where you see Congress doing a really, really good job and being out in front of, by all accounts, the federal government in many ways in terms of understanding and investigating what happened in terms of trying to undermine the last presidential election,” Weissmann told Politico on Tuesday.
He added that he did not believe the Garland DOJ began with the goal of investigating the conduct of Trump and others in the White House, and instead saw their case as focused on the narrower issue of the riot and those who participated in the violence.
Since Trump left office, federal prosecutors have charged hundreds of people who entered the Capitol on January 6 with crimes related to the breach, and brought charges of seditious conspiracy against two groups for planning the attack — the Oath Keepers and the Proud Boys.
But those misdeeds only amount to a partial look at the full breadth of what took place, Pelletier said — a focus on one aspect of the violent election-subversion effort, ignoring other events on Jan. 6 and the multi-month campaign to overturn the results that preceded it.
“The January 6 attack on the Capital was simply the culmination of a series of orchestrated criminal acts designed specifically to jettison the peaceful transition of power, overturn a fair election and topple our democracy,” Pelletier said. “There must be an independent investigation that concentrates on those criminal acts leading up to the insurrection that occurred solely at the highest levels of the Executive Branch.”
“The DOJ should be able to walk and chew gum here,” he added.
Attorney General Merrick Garland faces a historically unprecedented decision. The inner workings of the investigation remain largely unknown to those on the outside.
“You can’t overestimate the gravity of the decision,” Dennis Aftergut, a former federal prosecutor and of counsel at Lawyers Defending American Democracy, told TPM. “But we are well past the tipping point.”
Trump and Jan. 6
Garland has said that the DOJ is running the investigation with a bottom-up approach, emphasizing that prosecutors would “follow the facts wherever they lead.”
That’s prompted speculation that the facts would eventually lead to Trump and his inner circle. But the New York Times’ reports detailing the ways in which DOJ staff have been taken aback by the Jan. 6 Committee’s televised revelations have cast doubt on whether the investigation has actually played out in that way.
“You never know what’s going on behind the scenes,” Aftergut remarked. “It’s just that the DOJ has announced that it’s started certain Trump-related inquiries, and the chances are excellent that other lines of investigation would leak.”
Randall Eliason, a former chief of the D.C. U.S. Attorney’s Office’s public corruption unit, argued to TPM last month that the bottom-up approach made intuitive sense.
“I think they’re just slowly and methodically working their way up to the more serious charges and players, which is usually the way these investigations proceed,” he told TPM. “I’m not one who wants to speculate from the outside about why they’re doing particular things at particular times, but I think it would be expected for this to take significant time.”
Alan Rozenshtein, a former attorney adviser at the DOJ’s National Security section, suggested that fretting over the timing of prosecuting higher-up figures — included Trump himself — might be muddying the picture. But concerns about political influence will only get worse as time goes on, particularly with Trump suggesting that he will announce his candidacy before the midterms.
“If Garland is taking this cautious approach to avoid political issues, if that ends up with him prosecuting a former president as he’s running to be president, that raises its own potentially worse political problems,” Rozenshtein said.
Pelletier similarly emphasized that time was not on DOJ’s side, as it continues to rack up charges against individual rioters with the progress of the broader investigation into Trump remaining unclear.
“There is no time to waste and playing patty-cake with the insurrectionists will never address the serious crimes that admittedly occurred within the Executive Branch,” he said. “Isn’t this why we have a Department of Justice?”
New facts from the committee
Part of the question here comes down to whether or not prosecutors believed that there was enough information available in January 2021 to open an investigation into the attempt by Trump and his inner circle to block the election, or into Trump’s activities around January 6.
There’s legitimate debate around that question, at least as it concerns Trump’s relationship to the mob that attacked the Capitol.
Before the testimony of Cassidy Hutchinson, many legal observers didn’t believe that Trump had met the standard for incitement or obstruction.
“At that point, I didn’t think it would have been appropriate to open an investigation,” Rozenshtein told TPM. After Hutchinson’s testimony, Rozenshtein changed his view.
The New York Times reports suggest that federal prosecutors overseeing the investigation may have been similarly surprised, and had a similar change in perspective.
Rozenshtein added that “there’s no one way to do an investigation.” The team in charge at DOJ — Garland, Deputy Attorney General Lisa Monaco, and others — are likely confronting a set of facts that look different from within than they do from without, he said.
The DOJ investigation has taken overt steps in recent weeks that appear to be focused on a specific aspect of what Trump’s team hoped would unfold on Jan. 6: the seating of alternate electors. Feds have seized Trump lawyer John Eastman’s cell phone and conducted a search at the home of Jeff Clark, Trump’s inside man at the DOJ in the final days of his presidency — part of an investigation conducted by the DOJ’s inspector general. Additionally, the DOJ has issued subpoenas to dozens of people involved in the fake elector scheme.
Rep. Bennie Thompson (R-MS), co-chair of the Jan. 6 Committee, said on Wednesday that the panel was negotiating with the DOJ to allow federal prosecutors to review transcripts of depositions taken from witnesses in the fake electors probe.
That’s struck many, including Weissmann, as an example of the DOJ playing follow-up to the House. Aftergut argued that it could also be a sign of progress.
“In an investigation that may well be heading for a trial, you need to know what every witness has said on the record,” he said.