End of Jan. 6 panel opens new chapter for Department of Justice

The close of the Jan. 6 committee marks a new chapter in the review of the deadly Capitol riot, with the fact-finding mission of the panel — and their plea for accountability — now resting largely with the Department of Justice (DOJ).

The select committee’s investigation, which effectively ended with the culmination of the last Congress, has left a trove of leads for the Justice Department to explore.

Its report highlighted investigative loose ends, while the panel left thousands of exhibits of raw evidence posted publicly. 

It also finished with a direct ask of the Justice Department: to weigh criminal referrals against former President Trump and the attorney who encouraged Vice President Mike Pence to buck his ceremonial duty to certify the 2020 election results.

The Justice Department now faces pressure to carry the torch, even as its own probes, at least in the public sphere, have largely been directed at those who stormed the Capitol and not those who incited them.

“Our [role] was to look at the facts and circumstances. We did, and some of the facts and circumstances were very troubling. But obviously it’s beyond the scope of our committee,” said Rep. Bennie Thompson (D-Miss.), who chaired the Jan. 6 select committee and has publicly predicted DOJ charges. 

“So we’ve shared a number of depositions and other materials that they’ve requested, and I hope they take that material and use it in the furtherance of their charge.”

Any eventual high-level prosecution related to the Jan. 6 attack now rests with special counsel Jack Smith, whose mandate Attorney General Merrick Garland said includes “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election.”

The committee has made clear they hope that probe will directly target Trump and other close associates, nodding to the roles of Trump attorney Rudy Guiliani, chief of staff Mark Meadows and others. 

“Ours is not a system of justice where foot soldiers go to jail and the masterminds and ring leaders get a free pass,” Rep. Jamie Raskin (D-Md.), a member of the panel, said when announcing its criminal referrals.

The panel has given federal prosecutors transcripts the DOJ has been seeking since the summer, along with the release of unfiltered evidence, including emails, text exchanges and even voicemails.

Andrew Weissmann, an attorney who served on special counsel teams investigating Enron and Trump’s ties to Russia through the Mueller investigation, said Smith’s team is sure to be evaluating the tranche with a prosecutorial eye.

“Obviously, they’re reading everything,” Weissmann said.

“You have all sorts of people looking at it for different purposes. You have to do triage in terms of who are witnesses that are potential trial witnesses, who are people who you might be able to charge for false statements or obstruction or other crimes and see if they would flip. And so I think that literally is what they’re doing right now, and also looking at it very much with a defense eye.”

Mary McCord, who served as the acting assistant attorney general for national security under the Obama administration, stressed that prosecutors will be evaluating the evidence with a different standard than in the committee.

“The committee didn’t have the standards of the rules of evidence to apply. It didn’t have the same constitutional requirements of providing defendants — because it didn’t even have defendants — of providing defendants with all exculpatory and inculpatory material. It didn’t have any cross-examination, and the prosecutors will have to think about where there are vulnerabilities for purposes of cross-examination and attacking the strength of the government’s evidence,” she said.

“They can’t rely on hearsay. If they’re going to bring a case, they have to have evidence that will actually be admissible at trial.” 

Sandeep Prasanna, an attorney in private practice who previously served as an investigative counsel to the select committee, said the panel realized that criminal charges wouldn’t be appropriate for all they uncovered.

“At the end of the day, the task that was in front of the committee was just so different in nature than the task for DOJ. The report is intended to be a definitive account of the lead up and the attack itself. Congress, unfortunately, is not a prosecuting body. But we can tell a full story using the facts that we were able to uncover in a way that I think DOJ can’t. In many ways, they’re complementary institutions,” he said.

“There was a lot of conduct in the lead up to Jan. 6 that contributed to the effort to overturn the election and contributed to the precursors to the attack that may not necessarily rise to the level of crimes but are still incredibly relevant and central to telling the story.”

While courtroom standards could sideline some of the committee’s most captivating testimony, the evidence also provides a roadmap for prosecutors who may wish to shore up various lines of inquiry.    

“The department does have some tools that the committee didn’t have. You know, even for people who invoke the Fifth Amendment repeatedly in front of the committee, the department has some other choices,” McCord said, noting they are better able to compel testimony.

“They can also decide they will immunize somebody if they think that what they are refusing to talk about is important enough that they would be willing to forego using it against that person in order to obtain that information. And so those are some tools that the committee didn’t really have.”

In some corners there is a hope that the DOJ will be more aggressive in this next chapter of its investigation after lagging, at least publicly, behind the committee.

Weissmann said the DOJ has done an impressive job of addressing the “foot soldiers” Raskin referenced, including winning a guilty verdict in difficult-to-secure seditious conspiracy charges against some members of the far-right Oath Keepers. 

“But in terms of going up the chain, we haven’t seen any evidence whatsoever. That’s extremely unusual for an investigation into group conduct,” he said.

“There was a delay. I’m not in the camp of, ‘Oh, DOJ was always all over this and pursuing it with alacrity.’ I don’t think that was the case. … But I do think at this point, just looking at where we are now with the appointment of Jack Smith, I think that is somebody who I know for a fact and based on all information is somebody who is going to pursue this really aggressively.”

Rep. Zoe Lofgren (D-Calif.), another member of the committee, stressed that the panel doesn’t see the DOJ as the only stopgap for providing accountability following the termination of the panel.

The committee has called on bar associations to review the conduct of various attorneys involved in the scheme to prevent the transfer of power.

But she acknowledged the Justice Department does hold a key role.

“We can just provide facts, which we’ve done, and suggestions. So now it’s up to DOJ,” Lofgren said.

“I think they should feel a passion to see that justice is done.”