I. The Select Committee v. the DOJ
Select Committee Members Vent about the DOJ
For months now, members of the Select Committee have been harshly criticizing Merrick Garland and the DOJ, even implying that there is no evidence the DOJ is investigating Trump and his allies.
In March, committee members engaged in what NPR called “public venting” against the DOJ. Here are some examples:
- “Attorney General Garland, do your job so we can do ours,” said Rep. Elaine Luria (VA).
- “This committee is doing its job. The Department of Justice needs to do theirs,” said Zoe Lofgren (CA).
- “We are upholding our responsibility. The Department of Justice must do the same,” said Rep. Adam Schiff (CA).
May 17: We learned that something Was Happening Behind the Scenes
The New York Times reported that
The Justice Department has asked the House committee investigating the Jan. 6 attack for transcripts of interviews it is conducting behind closed doors, including some with associates of former President Donald J. Trump, according to people with knowledge of the situation.
A “person familiar with the matter” said the transcripts were “part of a negotiation” between the committee and the Justice Department in which the panel was hoping that prosecutors would turn over evidence in exchange for the transcripts.
Apparently, the negotiation was stalled because the committee wanted the DOJ to turn over certain information in exchange for the transcripts:
Aides to Representative Bennie Thompson, Democrat of Mississippi and the chairman of the committee, have yet to reach a final agreement with the Justice Department on what will be turned over, according to a person with knowledge of the matter who spoke on the condition of anonymity because of the confidential nature of the investigations.
Of course, social media (being social media) erupted with anger. Some people were furious at the committee for not complying with the DOJ’s request. Others took the side of the committee asking, “Why should the committee give its evidence when the DOJ isn’t helping the committee get information by indicting Meadows and Scavino?”
(Indictments for refusing to comply with subpoenas are not for the purpose of securing compliance; they are for the purpose of punishing, so bringing indictments against Meadows would not help the committee get information from Meadows. Moreover, as our 3-part government is set up, the executive branch makes prosecuting decisions, not the legislative.)
My take was this: The committee and the DOJ are separate branches of government with different objectives. When you have a three-part government, it happens that there are power struggles between them.
The Slamming Goes On
The New York Times reported that two people “familiar” with the matter have said that committee members were frustrated and have complained privately about the Justice Department, adding that many involved in the committee’s investigation believe Garland is proceeding too cautiously and slowly. (As a general rule, you can assume that any leaks come from the committee and not the DOJ.)
Then as recently as June 12, select committee member Adam Schiff said, “I would like to see the Justice Department investigate any credible allegation of criminal activity on the part of Donald Trump. There are certain actions, parts of these different lines of effort to overturn the election that I don’t see evidence the Justice Department is investigating.”
This caused me no small amount of annoyance because each time Adam Schiff (who has been particularly vocal in his criticism of Merrick Garland) implies that he sees no evidence of a DOJ investigation, people say some version of this: “Teri, I read your FAQs but Adam Schiff said he sees no evidence of an investigation and he’s a former prosecutor and a member of the committee, and he should know better than you, so there.”
The DOJ Makes A Letter Public
On Thursday (the same day as the second January 6 hearing), the DOJ, as part of a filing connected with one of its prosecutions, filed a letter.
Here is what happened. January 6 defendant Randall Biggs filed a request to continue his trial until December. One reason:
some 2,000 House Select Committee deposition and interview transcripts—most are testimonies and records of January 6 witnesses who are not currently under indictment–will not be available for release until after the 6-week trial in this case begins on August 8. Those transcripts are important for Biggs and Pezzola to have and review before trial—not during or after. The transcripts are must-haves for trial preparation.
In other words, Biggs wants to see the stuff before his trial. By law, defendants in criminal trials are permitted to see any exculpatory evidence (evidence tending to show that they are not guilty). Biggs apparently thinks (or hopes) something in those transcripts can help him. (It’s probably a Hail Mary motion: Most defense motions are.)
The DOJ, it turns out, also wants the transcripts from the committee. The DOJ filed a consent to continue to trial. As part of the motion, the DOJ included a copy of a letter it send to the committee. It’s 🔥
The letter opens by stating that the committee, in its public hearing, quoted extensively from court filings and played “portions of interviews conducted of individuals who have been charged by the DOJ in connection with the January 6 attack.”
The letter goes on to say, “It is readily apparent that the interviews the Select Committee conducted are not just relevant to our overall criminal investigations, but are likely relevant to specific prosecutions already commenced.” Therefore “it is critical that the Select Committee provide us with all transcripts of all its witness interviews.”
Interestingly, the letter adds that “As you are aware, grand jury investigations are not public, thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the committee’s investigation.”
The letter explains why the DOJ wants the transcripts: It needs to evaluate the “credibility” of witness statements by checking to see if witnesses have provided different statements to different government agencies.
[Aside: It almost sounds as if the DOJ is explaining to the committee why it can’t have Grand Jury testimony. Grand jury testimony is sacrosanct. A former prosecutor like Adam Schiff knows that the DOJ can’t share that information.]
The letter concludes with this:
“The Select Committee’s failure to grant the Department access to these transcripts complicates the department’s ability to investigate and prosecute those who engaged in criminal conduct in relation to the January 6 attack on the Capitol. Accordingly, we renew our request that the Select Committee provide us with copies of all the transcripts of all the interviews it has conducted to date.”
Here’s how I’m reading this letter from the DOJ to the committee. “We can’t share what we have because we can’t reveal grand jury testimony [and they can’t] but you can tell us what you have, so please do because we need it for our ongoing investigations and prosecutions.”
They’re also not saying, “Hey we’re lazy and we haven’t done our work so we want yours.” They’re saying, “We need to compare to see if these people are telling one story to a GJ and a different story to a legislative body.”
The next day, on Friday, the New York Times reported that the Select Committee “under pressure from federal prosecutors” say they will begin sharing interviews after their series of public hearings conclude.”
I need more clues to understand what was going on 🕵️♂️ but from the few clues we have, it appears the Committee is (1) withholding information from the DOJ that the DOJ says it needs for investigations, and (2) complaining that the DOJ is moving too slowly and even slamming the DOJ for refusing to begin investigations.
Good comment. The DOJ has a different goal and is on a different time frame from the committee. The committee, a branch of the legislature, are elected officials and are connected to politics. They really have to wrap up by the midterms. The DOJ, on the other hand, needs to get this right. They are on a different timeframe. If it takes them an extra six months or year, they need to make sure their cases are complete and they have all the evidence before they bring charges. Also, the DOJ has to follow strict rules. The committee can make up its own.
Update: On July 12, we learned that the committee started furnishing information to the DOJ. At about this time, after the process started but before the DOJ had much of the information, Schiff was back to slamming the DOJ for not bringing indictments on what it already has.
II. The Proud Boys as Paramilitary
The New York Times put together an amazing video. If you don’t have a subscription, this link should work. (I don’t think you can watch the video on a phone.)
The video makes clear that the plan was to make it look like a bunch of schmucks sent by Trump got out of control and stormed the Capitol. In fact, the breach was engineered by the Proud Boys, operating as a paramilitary, using the crowd as stooges.
For a long time, people adopted the narrative that what happened was Trump gave his “fight like hell” speech, and then the crowd, motivated by that speech, breached the Capitol. That led to the narrative that the people storming the capitol were mere “foot soldiers.”
Yes, some were schmucks who were at Trump’s speech and got carried along. Trump’s paramilitary skipped the speech and went straight to the Capitol and waited for the schmucks to arrive.
People still cling to the idea that the DOJ so far has only gone after “foot soldiers” while ignoring the “general.” In fact, the DOJ is going after the leaders of the right-wing paramilitary that engineered the coup.
This demonstrates how our understanding of events can change as new details emerge. Question: Does evidence exist of direct lines (other than Proud Boys responding to Tweets and lines from speeches) between the [would-be] autocrat’s inner circle and the paramilitary?
III. A Few Observations from the First January 6 Hearing
The Witnesses Were Republicans (that has to hurt)
Witnesses included:
- Bill Barr
- Chris Stirewalt, a former Fox News political editor as a witness
- B. Jay Pak, who Trump appointed as a US Attorney
- with cameo appearances by Ivanka and Jared.
Once again, we have witnesses that can in no way be called radical Democrats or even “never Trump” Republicans.
Having an AG testify against the president he formerly served is quite powerful.
After spending his tenure as AG politicizing the DOJ and doing Trump’s bidding, interesting where he finally reached the line he wouldn’t cross.
What’s interesting is where various people draw that line. Some Republicans jumped ship when Trump was nominated. Others, when Trump was elected and started battering democratic institutions. Others, after the insurrection. For some, there is no line they won’t cross.
Can you imagine how it felt for Trump to see his son-in-law and people he appointed testifying against him?
Rudy Guiliani Was Drunk
Today’s hearing opened with eye-witness testimony that when Rudy Giuliani gave Trump the advice on election night to declare himself the winner (even though the votes had not been counted, and even though they were all aware of the “red mirage”) Rudy Giuliani was drunk.
Trump took the advice of someone drunk while ignoring the advice of his campaign advisors and even Jared Kushner, who testified that he told Trump that declaring early victory was not something he would have done.
I think it’s to emphasize that Trump was just wildly inventing his own version of reality. The facts were not just invented.
They were invented by someone drunk.
Really the theme so far, from Trump claiming fraud before it happened to a drunk Guiliani advising Trump to declare victory is that they make up whatever crap they want. Reality and facts have no bearing on these people whatsoever.
Alexandra Marshall thought that Barr was setting Trump up for the defenses that he genuinely believed he won.
This won’t help Trump. Even if he genuinely believed the election was stolen, this would not give him the right to commit crimes (if he knew what he was doing was illegal or wrong). For example, genuinely believing the election was stolen is not a defense to interfering with the business of Congress, which as president he had no right to do.
Even if you genuinely believe your neighbor called you a vile name or even damaged your property, this would not give you the right to break their windows.
Yesterday, I wrote a blog post called Proving a Crime in the Media v. Proving a Crime in Court.
Trump’s Tweets Prompt Violence
In light of the evidence presented last week, that the Proud Boys and other militia groups attacked the Capitol because of Trump’s tweets, it was significant that one of the witnesses, Al Schmidt, testified about the death threats he received when Trump tweeted about him.
This is important because it shows how Trump could stir people to violence with a tweet.
The “big lie” and the “big ripoff.”
The committee presented evidence that the Trump campaign not only raised massive amounts of money on what they knew was a lie, the Trump campaign also lied to their donors about how the money would be used.
IV. Some highlights from Thursday’s January 6 Hearing
I’ll give you some highlights and analysis, but you really have to watch it for yourself. It’s available in lots of locations, including here. The first two are here.
The point of the presentation was to show that Trump knew he lost the 2020 election, so he oversaw a scheme to overturn the will of the American people. When the Vice President refused to go along with it, he unleashed a violent mob against Pence at The Capitol.
The most stunning takeaway was that the sitting president was cool with watching violence done to the vice president so that he could stay in power.
It is also becoming clear that Trump and his inner circle were willing to use force to keep Trump in power. This puts us into “seditious conspiracy” territory.
Another takeaway: former law professor John Eastman is in trouble. He’s the guy who wrote the memo for how Pence could overthrow the election by refusing to count electoral votes. The committee has evidence that he admitted that his proposal would violate the electoral count act. Then, after applying pressure on Pence as the violence was unfolding, he asked to be put on the “pardon list.” Here’s the pistol: He put the request in writing.
Eastman told Jacobs there was no legal or historical basis, but Eastman said no worry: the courts won’t get involved because it was a “political question.” First off, he was wrong. This was not a political question and the courts would get involved. That aside, he was basically saying, Let’s do this thing we know is illegal because we think we can get away with it.
V. More About Evidence
I’ve been posting a series of essays on punishment on substack. I’ll go ahead and cut and paste one of them here, but be warned: If you are a long-time reader, you’ve heard all of this before.
(That’s why I’m doing these on substack. I am limiting my blog posts to once weekly. Most people don’t like getting lots of stuff in their inboxes. But I keep getting repeat questions, so I’m answering them elsewhere for newer readers.
I’ll post one here, and then give links to the others:
Proving a Crime in the Media v. Proving a Crime in Court
To be fair, she is not a lawyer and has no experience with criminal trials. I quote her because she has a large audience and she is influential, and because lots of people are saying similar things (including people who are trained in the law and should know better).
It’s much easier to prove something in the media because much of the evidence you see in the hearings and in the media would not be admissible in a criminal court.
The heightened standards in criminal court are because more is at stake. In a criminal trial, a defendant stands to lose constitutional rights such as liberty, property, and (in capital cases) life. So evidence has to meet certain standards, and not all evidence is admissible.
In a congressional hearing, the only harm a person faces is the truth coming out. Keeping the truth from the public is not a constitutionally protected right (even though Trump and the Congressional Republicans often act as if it is.)
Much of the “evidence” you see on the news or read in newspapers would not be admissible in a criminal court.
One reason is because of anonymous sources. Major media can report “facts” after talking to anonymous sources. If the reporter is good and knows how to evaluate sources, the information is true and accurate.
But it can’t come into a criminal court as evidence because anonymous sources are hearsay.
At the hearing, Liz Cheney said,
You will hear testimony that the President didn’t really want to put anything out calling off the riot or asking his supporters to leave. You will hear that President Trump was yelling, and was really angry at advisors who told him he needed to be doing something more. And, aware of the rioters’ chants to “hang Mike Pence,” the President responded with this sentiment: ‘maybe our supporters have the right idea,” and Mike Pence “deserves it.”
Liz Cheney telling us what witnesses will say is double hearsay. In a criminal trial, the witnesses who heard Trump make such utterances must offer testimony under oath and withstand cross-examination. The defense will then try its best to discredit the witness, perhaps by showing that the witness has a history of lying, or a history of acting in his or her own best interests at the expense of the truth, or that the witness has an ulterior motive.
One problem with getting to Trump’s state of mind is that the evidence has to come from people in his inner circle, and many of them have a history of lying (or at least tolerating lies) because (to state the obvious) they are members of Trump’s inner circle.
I’ve compared bringing down Trump to bringing down a mafia don or a gangster. If the people around Trump are willing to shield him, it gets difficult to get to him. This is explained in the Godfather, in this passage:
The Godfather gave orders to commit a crime in private to his Consigliere without witnesses, who then gave orders to another person without witnesses, who gave orders to the guy who commits the crime. To pin the crime on the Don, the Consigliere would have to turn traitor.
If the Consigliere does turn traitor, the defense then goes to work trying to discredit him (which may not be hard because, c’mon, the guy is a gangster).
Because of the standard of proof — beyond a reasonable doubt—all the defense has to do is raise a doubt in the minds of the jurors.
A thing can be true and provable in court without rising to the level of “proof beyond a reasonable doubt.”
This is why OJ Simpson could be acquitted in a criminal court, where the standards of proof are high, but held legally responsible for the murders in a civil court, where the standards of proof are lower.
I’ve seen lots of clips from Trump’s January 6 speech in the Ellipse Park just before the insurrection. It’s hard not to watch those clips and the clips of the insurrection that followed and not be stirred to deep anger.
But we’re talking about evidence admissible in court, and I’ve never seen any clips run on TV that include this line from his speech:
I know Trump didn’t mean “peaceful” and you know he didn’t mean “peaceful,” but if the prosecution leaves out that detail, it could discredit the entire prosecution. The prosecution must confront the fact that Trump said, “be peaceful” and his defense will be, “I said ‘be peaceful’.”
We learned another interesting detail Thursday: The most violent and heavily armed of the militia groups that attacked the Capitol skipped the speeches on the Eclipse and went directly to the Capitol. See how that detail lends credence to the argument that Trump’s speech on the Eclipse didn’t prompt the violence? These guys were already planning to attack before Trump made that speech.
This isn’t to say Trump is innocent. Of course, he is guilty AF — but proving it in criminal court is not as easy as it looks.
Aside: Did you see the musical Chicago? The defense lawyer tricked the prosecutor into presenting bad evidence to the jury. The defense lawyer then used the fact that the prosecutor presented bad evidence to discredit the prosecution and get an acquittal for a cold-blooded murderer. This was fiction, but trust me: A defense lawyer would love it if a prosecutor tried to present a selectively edited video to a jury.
Each crime is broken into elements. Here are the elements of seditious conspiracy:
- To conspire to overthrow or destroy by force the government of the United States or to level war against them;
- To oppose by force the authority of the United States government; to prevent, hinder, or delay by force the execution of any law of the United States; or.
The key word is “force.” If, for example, Trump conspired to stop the counting of the votes by sending a rowdy mob to make a lot of noise outside the Capitol and persuade the Congressional Republicans into voting against the electors because they didn’t want their constituents mad at them—that wouldn’t be “force.”
Liz Cheney told us, “Trump intended to stop the counting of the votes by force.” I don’t doubt that what she says is true and backed up by the evidence she gathered and the witnesses she spoke to, but her statement would not be admissible in court as evidence.
“Seditious conspiracy,” includes “conspiracy” which, in addition to proving the “intended force” element, also requires proving each of these elements beyond a reasonable doubt:
If the juror has a reasonable doubt about any one of these, the juror must acquit.
See how hard it is?
It’s meant to be hard. Our criminal justice system is based on the theory that it’s better to let 10 guilty people walk free than to wrongly convict an innocent person.
OJ Simpson was acquitted even though the prosecution had a mountain of evidence. What happened was that the defense systemically called into doubt each piece of evidence.
See: all the defense has to do is raise a reasonable doubt in the minds of the jurors and then the defendant gets acquitted.
