The House Jan. 6 Panel Has Set a High Bar: Showing Criminality

Members of the House Select Committee investigating the January 6 attack on the US Capitol hold their 9th public hearing on Capitol Hill in Washington on Thursday, Oct.  13, 2022. (Cheriss May/The New York Times)

Members of the House Select Committee investigating the January 6 attack on the US Capitol hold their 9th public hearing on Capitol Hill in Washington on Thursday, Oct. 13, 2022. (Cheriss May/The New York Times)

In the final moments of what will most likely be the last hearing for the House committee investigating the Jan. 6, 2021, attack on the Capitol, its vice chair, Rep. Liz Cheney, R-Wyo., returned to a theme that has run through the committee’s work: criminality.

Without naming names or providing any specifics, Cheney asserted that the committee now has “sufficient information to consider criminal referrals for multiple individuals” to the Justice Department for prosecution.

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It is not clear whether the committee will follow through and take the largely symbolic step of issuing a criminal referral for former President Donald Trump or anyone who worked with him to overturn the election and encourage the mob of his supporters who entered the Capitol seeking to block or delay certification of his defeat.

But throughout its investigation and hearings, the committee has operated with a prosecutorial style, using the possibility of criminality like a cudgel in extraordinary ways. It has penetrated Trump’s inner circle, surfaced considerable new evidence and laid out a detailed narrative that could be useful to the Justice Department in deciding whether to bring charges.

The panel is expected to issue a subpoena as soon as Tuesday seeking to compel Trump to testify before it wraps up its investigation and issues a final report.

The committee’s effects on related criminal investigations are clear to see. Federal prosecutors and authorities conducting a local investigation in Georgia have found themselves interviewing some of the same witnesses already interviewed by the committee and issuing subpoenas for some of the same evidence already obtained by Congress.

But in suggesting that its goal is to spur criminal charges, the committee is setting a standard for success that is beyond its power to carry out — and one that could risk overshadowing the work it has done in documenting Trump’s efforts to remain in power and marshal his supporters to help him.

“People frequently walk up to me in the grocery store and they’re like, ‘Are you going to hold him accountable?’ That’s not Congress,” Rep. Elaine Luria, D-Va., a member of the committee, said in a recent interview. “However, the Department of Justice can take the facts that we’ve outlined in our investigation and use them.”

For all the focus that Cheney has put on producing criminal referrals, the committee has not been entirely cooperative with the Justice Department, slow-walking requests from the department for transcripts of the interviews it has conducted.

The task of determining whether anyone broke the law is never mentioned in the resolution that led to the creation of the committee in June 2021. Its chief mission, according to a House resolution, is coming up with an authoritative account of what occurred, identifying failures by law enforcement and other causes of the violence, and providing recommendations to ensure it never happens again.

But the committee has turned itself into an adjunct front loader to the Justice Department, developing new evidence, coming up with theories for laws that Trump and his aids might have broken and educating the public about them at nationally televised hearings that unfolded like an episodic running drama.

Committee staff members — many of whom are former prosecutors — employed a strategy of highlighting a range of potential crimes or lanes for investigators to pursue at each of the panel’s public hearings.

One hearing focused on how donors had been defrauded by being targeted for donations to help fight specific election fraud claims.

Other hearings focused on whether Trump and his aids committed the crimes of defrauding the American people or obstructing an official proceeding of Congress. At another, members raised the question of whether Trump or his aides committed witness tampering.

“The purpose of this committee is to ensure that we tell the full truth, allow government officials to make changes to the system, to improve our guardrails, allow the American people to make better decisions about who they elect, and also to encourage DOJ to do their job,” Rep. Stephanie Murphy, D-Fla., said on NBC’s “Meet the Press” on Sunday.

The committee’s work has already yielded two contempt-of-Congress prosecutions for failure to comply with subpoenas issued by the panel. The Justice Department has prosecuted two former aids to Trump — Steve Bannon and Peter Navarro — on contempt charges.

A jury convicted Bannon, who was pardoned by Trump in an unrelated crime and is now scheduled to be sentenced Friday. The Justice Department recommended Monday that he serve six months for the two misdemeanor contempt charges and pay a $200,000 fine.

Navarro is scheduled to go on trial on the contempt charges next month.

“Congress has always been a stalking horse for the Justice Department’s investigations, but this was done expressly, blatantly and without mincing words and without hiding their motives, in a greater magnitude than what I’ve ever seen,” said Stanley Brand, a Democrat who once served as the top lawyer in the House.

Brand has strongly criticized the committee and now represents Navarro.

In forming its staff, the committee took a different approach than previous congressional investigations, hiring several former federal prosecutors and putting a former United States attorney in charge of overseeing its day-to-day work.

Some of the first public signs that the committee would be taking a different approach emerged in December when Cheney said the question of Trump’s criminality was one that the panel was investigating. She then began reading directly from the federal criminal code a law she believed he may have broken.

“Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceeding to count electoral votes?” Cheney said.

In March, in a civil court fight with John Eastman, a conservative lawyer who helped advise Trump on how to overturn the election, the committee filed what amounted to a de facto indictment against Trump and Eastman. Although the document held no criminal weight, the committee asserted that both men had engaged in criminal conduct in the lead-up to the Jan. 6 attacks.

“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,” the filing said.

The federal judge overseeing the case was largely agreed, saying it was “more likely than not” that Trump and Eastman had broken the law.

Armed with the court’s ruling, Cheney took the lead in continuing to raise questions publicly about whether Trump broke the law. But it was the committee’s approach to its string of hearings that began in the late spring that provided a stark contrast to the Justice Department’s slow, methodical approach under Attorney General Merrick Garland.

Speaking like prosecutors, members of the committee treated the American public at the hearings like it was a jury at a criminal trial as they methodically built a case that showed Trump knew he had lost the 2020 election, lied repeatedly to the public about it, amassed a crowd of his supporters who then stormed the Capitol and did nothing for hours to stop them.

When a former West Wing aid, Cassidy Hutchinson, provided electrifying testimony in late June, she made a series of damaging disclosures that were new to the Justice Department and grabbed senior officials’ attention. The mounting public questions about the potential criminality of Trump and his allies raised questions about whether Garland was willing to take them on.

As those questions crescendoed in the summer, reports emerged that federal prosecutors were indeed investigating them. Relying on the blueprint laid out by the committee, prosecutors in the months that followed subpoenaed many of the same witnesses who had tested before the committee.

But the threshold for charging a former president or his top advisers is higher than for setting out a case at a congressional hearing with no one on hand to argue in Trump’s defense. Legal experts have a range of opinions about whether there is sufficient evidence to bring a case and whether Garland, who has the ultimate say, would make such a move, knowing how it could further divide the country, particularly if Trump is the Republican Party’s nominee for presidents in 2024.

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