Amongst those seeking justice for the higher level officials responsible for efforts to overturn the 2020 election news yesterday brought great excitement. The Department of Justice is seeking transcripts from the over 1,000 interviews the January 6 Committee has conducted. The DOJ believes the transcripts “may contain information relevant to a criminal investigation we are conducting.” If nothing else this provided further evidence that such investigations, of likely political and Trump Administration figures, are being conducted.
But then cold water was thrown on the hot news. The January 6 Committee was dragging its feet in providing the information. “The interviews in the possession of the committee are the property of the committee,” said Committee member Jamie Raskin. “We can’t give them full access to our product,” said Committee Chairman Bennie Thompson.
The scream of “what the F?” could be heard across the Twitterverse. From the perspective of those waiting for these indictments the DOJ has waited far too long already. Why would the January 6 Committee do anything to stall the DOJ investigation even a little? If the DOJ wants the transcripts, give it to them. Aren’t the DOJ and the Committee on the same side here?
I start with the premise that they are on the same side, and that an accommodation will be reached. The DOJ will likely go through the process to subpoena the documents, and the committee will provide them. But why would the Committee make the DOJ do this? Why not just make things easy and voluntarily hand over the transcripts? I think there may be many reasons.
- The Independence of the Committee. The Committee wishes to establish that it is not merely an investigatory arm for the Department of Justice. As explained below, that can be important to bolstering the legitimacy of the Committee. Beyond that, the Committee may well be expressing its frustration with the DOJ failing to indict Mark Meadows for refusing to testify to the Committee (more on that in a minute) and is simply making clear to the DOJ that if the Committee is to “play ball” with the DOJ, the DOJ must play ball with it. The Committee wishes to be seen as relevant in its own right.
- The Legitimacy of the Committee. Closely related to establishing the Committee’s independence, is the notion that the Committee should act to confirm its legitimacy and dedication to its legislative purpose. Republicans have attacked the Committee as not legitimate both in court, and in the court of public opinion. This criticism claims the Committee’s stated legislative purpose, investigating facts for legislation to avoid another January 6th, is a sham, a pretext for an impermissible criminal investigation by the legislature whose real purpose is to embarrass the opposing party. Being seen as too closely in bed with the Department of Justice, and its criminal investigations related to January 6th, bolsters this criticism. The Committee is arguably wisely distancing itself from the DOJ by presenting at least a show of resisting the DOJ’s request for information.
- A Message To Witnesses. The Committee is communicating to potential witnesses that their testimony is not necessarily a direct conduit to the Department of Justice. The Committee demonstrates that it will respect the privacy of witnesses cooperating with it to the extent that it can.
- Respecting The Subpoena Power. The Committee has issued hundreds of subpoenas, some of which have been resisted by their high level targets. By submitting to, and succumbing to, the subpoena power the Committee demonstrates its own respect for the rule of law and the compulsory power of subpoenas.
- The Value of Subpoena Itself. The public release of a DOJ subpoena to the Committee is its own reward. It is tangible proof, for all to see, that the DOJ is investigating political figures and that the investigation is serious. That alone is a message that validates what the Committee is doing.
- Quid Pro Quo. The Committee has evidence the DOJ wants, and the DOJ undoubtedly has evidence the Committee wants. While the DOJ can’t risk compromising its own criminal investigations, it is possible that it can provide the Committee something of value in exchange for the Committee giving the DOJ what it wants.
I believe the DOJ will have what it needs from the Committee, and it will have it soon. The real story here is that the DOJ is obviously investigating high level political and Trump Administration figures and that the investigation is serious.
The Committee has often expressed frustration that the DOJ has not acted on its criminal referral of former Trump Chief of Staff Mark Meadows. The House of Representatives found Meadows in contempt of Congress way back in December and referred it to the DOJ for prosecution, but the DOJ has so far failed to act. I have long speculated that the DOJ’s delay is because it is preparing much more serious charges against Meadows than mere contempt of Congress. Recent events only feed that speculation.
There is more to go on here than mere speculation. In court filings, the Committee itself has directly stated that: “The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371.” In addition, a Federal judge has directly stated that Trump, and his lawyer John Eastman, likely committed felonies to obstruct the counting of electoral college votes and engaged in a conspiracy to defraud the United States by interfering in the election certification process.
The indications are there for all those willing to see them.
