Time
for DOJ to Do its Job on Jan. 6
By ELIE HONIG
Note From Elie is part of the free weekly CAFE Brief newsletter.
Dear Reader,
The January 6 Committee has done its job.
No, the Committee hasn’t been perfect; they didn’t need to be,
and it’s virtually impossible for an inherently political congressional body,
armed with limited investigative tools, to complete its work without a hitch.
But in the near-final analysis, the Committee has accomplished all that
reasonably could have been expected of it. As a result, the American public now
has a meaningful understanding of what caused January 6, and of Donald Trump’s
undeniable role at the center of it all.
It’s remarkable now to look back at Trump’s second impeachment,
in those raw days right after January 6. Think of how relatively little we knew
back then. Sure, we had a rudimentary collective knowledge about how the attack
went down: we had the benefit of remarkable journalism that sketched the broad
outlines of the weeks-long effort by Trump and his enablers to pull the levers
of power to steal the election, we’d seen Trump’s brazen rallies and explicit
tweets, and we witnessed on live television the assault on the Capitol. But now
we know so much more about Trump’s role as the dominant driver of the effort,
and the extent of it all.
Back during the second impeachment, we didn’t know about Cassidy
Hutchinson, or what she’d have to say about Trump’s desperate attempts to cling
to power. We hadn’t heard from insiders like Pat Cipollone, Jeffrey Rosen, and
Eric Herschmann about the maneuverings of the Trump diehards and the resistance
by those who declined to partake in an insurrection in progress. We had only
partial understanding of the coordinated efforts to stage a coup-within-a-coup
at DOJ, to pressure state and local election officials and legislators, and to
put the wood to the vice president. We hadn’t seen the damning texts sent by
dozens of GOP power players to Mark Meadows – at first plotting to steal the
election and then, as hell broke loose on January 6, begging him to scale it
back. And, while we might have reasonably suspected it, we now know that Trump
did nothing to quell the violence during those fateful 187 minutes while the
Capitol came under attack. (Trump now says he wasn’t even watching the events
unfolding on television – a claim contradicted by the Committee’s witnesses,
extensive public reporting, and every ounce of common sense and experience in
the known universe.)
Sure, we can find fault (and I have, in this space) with some of
the Committee’s moves. They handled their congressional colleagues – Kevin
McCarthy, Jim Jordan, and others – with a soft touch, subpoenaing them late in
the game and mostly as a symbolic gesture, with no enforcement after the
recipieints predictably refused to comply. And the Committee permitted dubious
invocations of executive privilege from Cipollone and others, apparently accepting
the practical reality that they simply didn’t have the time to go to court and
fight it out. But, like the Stones said: you can’t always get what you
want – but if you try sometimes, you get what you need. Good enough can be
good enough.
The Committee soon will issue its final report, which will stand
as a capstone to their work and an important historical document. Still, it’s
fair to ask: so what? Reports and findings and recommendations are lovely and
all – but what actually happens next? What consequences will there be for those
behind the attempt to topple democracy?
That’s always been a question ultimately not for the Committee,
but for prosecutors at the Department of Justice. The Committee’s work is
mostly done. The lingering question about whether they ought to send a formal
criminal referral over to DOJ is mostly about window-dressing, as I
discussed here. (In short, a referral does not compel
DOJ to do anything, nor does DOJ need a referral to take action; it’s a
political move that might even backfire.) So now, as the Committee gets ready
to wrap up their work, with or without a referral, the spotlight will intensify
on Merrick Garland and the Justice Department.
While the Committee can’t indict, of course, they undeniably
have made meaningful criminal charges – against the real powers behind the coup
attempt – more likely. First, the Committee has uncovered vital new evidence that
was previously unknown to DOJ. The New York Times reported that
federal prosecutors watched from their couches and were just as stunned as you
or I by the testimony of Hutchinson. Indeed, DOJ’s list of subpoena targets and
other witnesses has essentially mirrored, and lagged behind, the Committee’s:
Hutchinson, Cipollone, Patrick Philbin, Marc Short, and others. Federal
prosecutors even had to go hat-in-hand to the Committee, begging for
transcripts and other evidence, like Oliver Twist asking for some more gruel.
The Committee has responded with a
bit of self-satisfaction: this is our evidence, we found it, and we’ll
give it to you, eventually, whenever we feel like it.
It is humiliating for DOJ to wind up in this position relative
to the Committee, given that prosecutors have vastly superior investigative
tools at their disposal. The Justice Department, unlike Congress, can execute
search warrants, obtain wiretaps, issue grand jury subpoenas (the real kind,
that is), and use the threat of prison time to flip cooperators. Yet the Committee
has surged ahead of DOJ. It’s like a guy driving a Tesla getting lapped by a
kid pedaling a Big Wheel.
Not only has the Committee blazed an investigative trail for
DOJ, but they’ve also ratcheted up the political pressure on prosecutors. Yes,
we’ve all heard Garland vow that he will
act regardless of politics; “law and facts” and “at any level” and all that.
But the Justice Department plainly understands the larger stakes here. Garland
has addressed the January 6 investigation at seemingly every public appearance,
including on the eve of the one-year anniversary of the attack. No, he doesn’t
(and shouldn’t) give us investigative details, but he sees the press and he
understands the pressure, despite his protestations.
I do believe Garland will make this decision in a non-political
manner. If anything, he might even bend too far in the opposite direction, as
he has exhibited reluctance to make tough calls that, even if necessary, might
have political appearances or implications. He has conspicuously adopted a
stultifyingly hesitant pace on the January 6 cases as they apply to the powerful
players; it took well over a year for DOJ even to subpoena anyone within
proximity to Trump. The reality is, we are coming up on the two-year
anniversary of January 6 – and not a single person anywhere near Trump has been
charged with anything.
That still might change, of course (though, as I’ve argued before, it’s all but too late at this point).
If it does, the January 6 Committee can rightly take some of the credit. The
Committee overcame political obstacles – the stonewalling efforts of Trump,
McCarthy, and others – to form a task-oriented, businesslike, bipartisan
investigative body. They unearthed powerful new evidence, which they presented
to the public in a clear and compelling manner. And the Committee’s work will
sharpen the impetus on DOJ to pursue real consequences.
The Committee has done its job. The question now is whether the
Justice Department will do the same.
Stay Informed,
Elie
