Case
Closed: The January 6th Committee Will Rest
Dear Reader,
When the January 6th Committee completes its final hearing on
Thursday, a fair question will be whether the members have made their case. The
answer to that question depends on how you define “their case.”
Critics of former President Donald Trump are likely looking for
evidence that will convict him of crimes for his role in undermining the
outcome of the 2020 presidential election. But investigating and prosecuting
crimes is the job of the Justice Department, not Congress. For the legislative
branch, the task is to conduct fact-finding and oversight to determine whether
laws should be changed or funds appropriated to protect national interests. In
addition, the public hearings serve to provide transparency in government by
educating the country about what is at stake when forces attack our
democracy.
In that task, the Committee has exposed profoundly disturbing facts.
Over the course of the hearings, Committee members have presented evidence that
Trump was well aware that the election results were not based on fraud, and yet
took steps to overturn the outcome. We heard testimony that Trump and members
of his campaign pressured officials in Georgia and Arizona to change the
election results in his favor. Former DOJ officials described how Trump
attempted to weaponize the Justice Department to legitimize false claims of
fraud and persuade states legislatures to submit alternate slates of electors.
We also heard the powerful testimony of two Georgia election workers whom Trump
accused of fraud, turning their lives “upside down.” The Committee presented
evidence of Trump’s efforts to pressure Vice President Mike Pence to abuse his
role to certify the election by rejecting votes from certain swing states and
declaring Trump the winner. And of course, we have seen proof that Trump
summoned the mob to Washington on January 6th, exhorted them to go to the
Capitol despite knowing some of them were armed, and then failed to call them
off until after lives had been lost.
The Committee has indicated that Thursday’s hearing will
feature new material focusing on Trump’s role in attempting to overturn the
election and threats to democracy going forward. One thing the Committee has
not yet established is a direct link between Trump and the physical attack on
the Capitol. We have seen some troubling ties between his allies and the Oath
Keepers and Proud Boys, groups that have been charged with seditious conspiracy
for their alleged efforts to use violence to thwart the lawful transfer of
presidential power. For example, the Committee has shown evidence of an
encrypted group chat called “Friends of Stone” that included Proud Boys leader
Enrique Tarrio and Oath Keepers founder Stewart Rhodes. But we have not seen
the content of those communications or even evidence that Stone himself
participated in the chats. The Committee also showed a December 2020 photo of
Trump’s former national security adviser Mike Flynn with Rhodes and another
Oath Keeper, who was purportedly providing security for him. More direct
evidence of an agreement to use physical force at the Capitol would be needed
to tie Trump to the seditious conspiracy.
But even if the January 6th Committee is unable to connect Trump
directly to the violence at the Capitol, that does not mean that the Justice
Department will reach the same conclusion. DOJ has likely benefited from the
work of the January 6th Committee. For example, reporting indicated that
prosecutors were surprised by the testimony of former White House aide Cassidy Hutchinson, who
provided compelling details about the events of January 6th at the Ellipse and
inside the White House. But DOJ has the ability to dig even deeper than the
Committee. That’s because DOJ has investigative tools that the Committee lacks,
namely search warrants and the grand jury system. Search warrants enable DOJ to
obtain property stored at someone’s home or office, and, even more importantly,
the contents of phones containing encrypted text messages, group chats, and
email messages. As demonstrated in the indictment against the Oath Keepers,
which quotes defendants discussing their plans in detail, contemporaneous
communications can be a gold mine for investigators. It seems likely that DOJ
has the content of communications that the Committee lacks. If there is a
smoking gun text message, DOJ will find it.
Grand jury subpoenas require witnesses to testify. Unlike
congressional subpoenas, which are sometimes ignored by witnesses and
unenforced by DOJ because of executive privilege, grand jury subpoenas are
enforced regularly. Failure to honor a grand jury subpoena will land a witness
in contempt or even jail. Appearing before a grand jury is a sort of truth
serum. In a forum where lying is punishable by up to five years in prison,
witnesses are incentivized to stick to the facts. Witnesses who invoke
their Fifth Amendment rights against self-incrimination can be granted immunity
and compelled to testify, so long as prosecutors do not use their own
statements against them. Prosecutors can also leverage potential criminal
charges or a reduction in sentencing to entice witnesses to provide testimony
about their co-conspirators. Three members of the Oath Keepers have already
entered guilty pleas and
agreed to cooperate. No one likes a snitch, but that’s how DOJ makes its cases
against criminal organizations.
So as the January 6th Committee convenes for its final hearing
on Thursday, it has already achieved its purpose of exposing efforts to
undermine our democracy and demonstrating to the public in a compelling way the
grave danger of election subversion. The members will leave it to DOJ to file
any criminal charges. Held in the very same building where rioters sought to
halt the peaceful transfer of power, these hearings mark the triumph of
democratic institutions over anarchy.
The Committee has made its case.
Stay Informed,
Barb