Tensions rise between DOJ, Jan. 6 panel

After weeks of airing concerns the Justice Department may not be moving aggressively enough to prosecute former President Trump and others in his orbit, lawmakers on the House committee investigating the Jan. 6 attack met the department’s request for assistance with an interesting response: Not so fast.

The Justice Department has asked the committee to share some of its materials, sending a letter noting that some of its work “may contain information relevant to a criminal investigation we are conducting.”

But the committee has said it won’t directly turn over what it’s got, suggesting it would provide only a more narrow level of assistance. 

It’s the latest sign of inter-branch tension between the two investigations which, despite their overlapping interests, have stressed their independence of one another.

Jeff Robbins, an attorney now in private practice who has served as both a federal prosecutor and a Senate investigative counsel, says while both branches are seeking accountability over the events surrounding Jan. 6, each entity has different goals in mind.

“I can say broadly that the traditional tension between congressional investigative committees and the Department of Justice … about witnesses is that they have different interests,” Robbins said. “The Department of Justice wants to be in a position to prosecute people or to potentially prosecute people and the congressional committees want to be able to stage hearings that lay out for the American people what happened in a way that is designed to grab and keep the attention of the media and the American people.”

“So there is some — let’s call it jealousy and competing interests between the two branches.”

Members of the select committee have been calling for the Justice Department to be more aggressive in investigating and prosecuting political figures who may have played a role in instigating the Jan. 6 attack — or, as in the case of former White House chief of staff Mark Meadows, have defied the panel’s subpoenas.

“Attorney General Garland, do your job so we can do ours,” Rep. Elaine Luria (D-Va.) said during a March hearing to weigh their third and fourth referrals to DOJ of witnesses who refused to testify. 

Providing federal prosecutors with the transcripts of hundreds of witness interviews by the committee would likely aid law enforcement in bringing the types of prosecutions that many in the Democratic Party have been seeking.

“It’s not clear that the Department of Justice would need evidence from the committee for the purpose of prosecuting Whack Job A and Lunatic B storming the Capitol. What they would be interested in is evidence that relates to the various strategies put in place before the election, after the election, leading up to January 6, and even afterwards, for the purpose of trying to get the election results flipped. And the cast as potential characters is a large one,” Robbins said.

DOJ has filed charges against members of the Proud Boys and far right militia group the Oath Keepers. But the request could also signal an investigation into those in Trump’s orbit.

But Chair Bennie Thompson (D-Miss.) implied DOJ may look but not touch.

“They could come and view what we have, but we’re not going to share it,” Thompson said.

“A decision was made not to share any of the records. If they would like to change the request and say we’ll come over and view it that’s fine. But the original request, as it came to the committee, has been turned down,” he said, adding that the department has yet to come back with a more tailored request.

Rep. Adam Schiff (D-Calif.) said the standoff is not a sign of “any kind of hostility between our committee and the department,” even as he called for the Justice Department to be more specific about what it’s asking of the panel.

“My concern, frankly, is the lack of evidence of DOJ investigating in areas where I think they should. And so that’s a greater concern for me than the breadth of what they’re asking Congress for,” he said.

“I think they need to be specific about what they need and why they need it. And the failure to do so raises the same questions about the scope of their investigation and why it is more than a year after Jan. 6 some things still don’t seem to be investigated by the department. … The department doesn’t wait on Congress to do an investigation. And so I think the question is: Why is the department coming to Congress at this point? Why hasn’t the department been doing a broader investigation from the beginning?”

Others referenced a need to assert their independence.

“The Jan. 6 Select Committee has a very specific, statutorily defined purpose,” Rep. Jamie Raskin (D-Md.) said.

“The House resolution creating us has asked us to assemble evidence about what happened on the sixth, what caused it and what we need to do in order to prevent it in the future. The Department of Justice has a completely different mission, which is to determine specific crimes and to prosecute them. And so in the Venn diagram of our relevant missions, there’s a lot of overlap, but it’s not complete.”

Rep. Pete Aguilar (D-Calif.) also echoed the hope that DOJ is serious about holding people accountable.

“Everybody’s got their role,” he said. “We’re staying in our lanes and we’re focused on laying out the case that’s ahead of us in June.”

Robbins said the select committee should be mindful about keeping the DOJ investigation at arm’s length so it doesn’t create the perception that it is colluding with prosecutors on cases against partisan adversaries.

“In a country which is so polarized on whether or not there’s anything to this Jan. 6 thing or not, they would be wise to think about the optics of looking as though they are just a feeder for politically motivated prosecutions,” he said. “If you were them you would want to be careful about simply saying, in effect, ‘Great, glad you asked. Here it all is.’ ”

It’s unclear which of the select committee’s witnesses are of interest to federal prosecutors. The panel has interviewed more than a thousand people across a spectrum of figures with varying degrees of involvement in the actual riot at the Capitol.

The DOJ declined to comment on its request for the committee’s transcripts.

The department has reportedly expanded its investigation in recent months to include organizers of the “Stop the Steal” rallies that preceded the attack as well as the scheme to prepare fake slates of electors who would have thrown their support behind Trump in states that President Biden won.

Robbins said that the DOJ’s interest in the committee’s transcripts would support the speculation that prosecutors are turning their attention from those who were physically present during the mayhem on Jan. 6 to the various efforts to undermine or overturn the 2020 election results.

“The most reasonable inference is also the obvious one, which is that the Department of Justice, while staying silent as it should about what it’s doing, is in fact, looking at a potential case or potential cases against individuals involved in the prelude to Jan. 6, or even the aftermath of Jan. 6,” he said.