The Department of Justice v. the January 6 Committee

Turf battles are frequently observed in Washington, and most are resolved without serious damage to the public interest. But some are difficult to understand and are potentially harmful. That is the case with the puzzling reluctance of the January 6 Committee to give its full and prompt cooperation to the Department of Justice as the Department investigates the highly questionable activities by Donald Trump and his associates in attempting to overturn the 2020 election.

The January 6 Committee has conducted a wide ranging and robust investigation. Indeed, it has been a successor on steroids to Senator Sam Ervin’s Watergate Committee. The January 6 Committee’s work has documented a wide variety of actions, both before and after January 6, that appear to call for criminal prosecution. Overall, the Committee has seemed to be well in front of whatever investigations DOJ was conducting into the various schemes to overturn the 2020 election. For too long, DOJ appeared to be focusing primarily, if not exclusively, on prosecuting the insurrectionists who were physically present at the January 6 assault on the Capitol. That was and is an essential pursuit but only a first step.

Finally, however, it seems clear that the Department is determined to seek accountability at higher levels. Certainly that was the message conveyed by the appointment of Jack Smith as Special Counsel to head the investigations concerning both a) Trump’s unlawful removal of classified and other documents to Mar-a-Lago and b) interference by the Trump gang “with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.”

Under these circumstances, the duty and responsibility of the January 6 Committee is to cooperate as fully and swiftly as possible with the DOJ. Unfortunately, that does not appear to be happening. On November 30, Attorney General Merrick Garland commented almost plaintively on the information the Department has for months been attempting to gain from the Committee:

We would like to have all the transcripts and all the other evidence collected by the committee so that we can use it in the ordinary course of our investigations. We are asking for access for all of the transcripts and that’s really all I can say right now.

On the same day, however, the Committee made it clear that it was not about to be rushed. As reported in the Hill:

Jan. 6 committee Chair Bennie Thompson (D-Miss.) said the Justice Department (DOJ) will have to wait for the panel’s final report to review transcripts of its interviews with more than 1,000 witnesses, rebuffing an agency request lingering since May.

The decision means DOJ will, like the public, have to wait until late December to access depositions and evidence, with the agency maintaining since this summer that their withholding has complicated its own Jan. 6 investigation.

I suggest that the posture of the January 6 Committee continues to border on irresponsible. Whether the Committee recognizes it or not, time is of the essence. Indeed, the greatest obstacle to the successful prosecution of Trump may be limited time. As I observed in a post in July:

If a Trump prosecution is still pending at some stage in January 2025, and the new president is a Republican, it seems highly likely that charges would be withdrawn (as they were in the case of Mike Flynn) or a pardon granted. Might the new president be Trump himself? Could be. Ordinarily one would assume that an indictment and pending trial would be fatal to a presidential candidacy, but in the bizarre state of our current politics, who could say for sure? Finally, even if the new president in 2025 is a Democrat, he or she might grant a pardon in the hopes, perhaps misplaced, of “healing the country.”

Hence, the further loss of even a few weeks is regrettable. Ironically, the Committee is reportedly considering whether to make a criminal referral to DOJ. As a practical matter, the making of such a referral is likely to have little or no impact on the Department’s decision. What does matter is to put in its hands, as quickly as possible, all available evidence that would support a decision to prosecute.