The Department of Justice (DOJ) is facing pressure as the House Jan. 6 select committee’s presentation of damning evidence involving the Trump White House has raised questions about whether federal prosecutors have kept pace with the lawmakers’ inquiry and how long the former president can escape being directly investigated.
Select Committee Chairman Bennie Thompson (D-Miss.) told reporters this week the panel was nearing an agreement to share some of its work on Trump’s “alternate elector” scheme that would send faulty certificates to Washington in an attempt to reverse President Biden’s victory in key states.
The move generated a more positive tone from members of the committee who have often been critical of the speed of DOJ’s investigation.
“Well, I think they’re looking at more than that. And I think over time, you will see a little broader view on the investigation,” Thompson said Thursday.
Thompson said he was speaking from “personal knowledge” but declined to elaborate.
The Justice Department has reportedly been caught off-guard by some of the select committee’s revelations.
According to a New York Times story this week, former White House aide Cassidy Hutchinson’s stunning testimony last month included some assertions that were new to federal prosecutors, prompting DOJ leadership to more directly discuss Trump’s role, including in the presence of Attorney General Merrick Garland.
“It seems clear that DOJ is behind the committee investigatively, which is hard to comprehend and unforgivable from DOJ’s perspective,” Elie Honig, a former federal prosecutor in the Manhattan U.S. Attorney’s office, told The Hill.
“Federal prosecutors have every investigative advantage over Congress. Federal prosecutors have far more personnel than Congress has. They have much more powerful subpoenas than Congress has, they have the ability to conduct search warrants, to do wiretaps, they have the ability to use the threat of prison time to flip cooperators. Congress has none of that and yet Congress appears to be way out ahead of DOJ.”
And many observers say they remain concerned the Justice Department seems to be dancing around directly investigating Trump.
Ryan Goodman, co-director of the Reiss Center on Law and Security at the New York University School of Law, pointed to the recent search warrant executed on Jeffrey Clark, an assistant attorney general with a specialty in environmental law that Trump mulled installing as head of DOJ in order to push a department investigation into election fraud.
“How can you criminally investigate Jeff Clark, and the alternate slate of electors and avoid where it lands, where it ends up, which is with Donald Trump. But by that time, if they haven’t really opened up an investigation on him as the target, we’re now already 18 months following these events. It’s really a dereliction of their responsibilities to do a fulsome and rigorous investigation. That’s my major concern,” Goodman said.
Indications that the DOJ may be lagging behind the select committee have prompted some high-profile criticism.
Andrew Weissmann, a former federal prosecutor who worked on Robert Mueller’s special counsel investigation, published an opinion piece in the Times last week criticizing the department’s approach to the investigation, arguing that prosecutors should not have been taken by surprise by a congressional inquiry’s findings.
“That is not a sign of a robust investigation into the facts,” Weissmann wrote. “The department has more tools than Congress does to learn the truth. It could have interviewed Ms. Hutchinson long ago, as well as many others whose evidence is relevant — indeed, Ms. Hutchinson alone provided investigators numerous leads to pursue.”
The select committee has provided a growing number of revelations about Trump’s efforts to undermine the election and his conduct before and during the Jan. 6 attack. That evidence has also raised new questions for investigators, including about the level of coordination — if any — between Trump and right-wing groups that descended on D.C. for the Electoral College certification.
Legal experts say those fresh lines of inquiry should now be a top priority for law enforcement’s own investigation, as federal prosecutors are best equipped to fill in the gaps of what Congress has uncovered.
Goodman said that could include a conversation with Dan Scavino, Trump’s social media guru, who the committee said aided his alleged outreach to extremists. And Roger Stone and Michael Flynn, close Trump associates who used members of extremist groups as their personal security, are also ripe for investigation.
“There are obvious loose ends from the committee’s work, that the Department of Justice would have a much easier time investigating with all of the tools at their disposal,” Goodman said.
While he said there’s debate over whether there is enough evidence to charge Trump, few are questioning whether there is sufficient fodder to look at the former president.
“That’s what I think is very concerning. Given that many, many former federal prosecutors and lawyers are debating the question of whether or not there’s proof beyond a reasonable doubt that Trump engaged in these conspiracies — it’s not really a debate about whether or not there should be an investigation to find out if the evidence is sufficient,” Goodman said.
“That to me is why it’s so concerning if the Justice Department has tied itself in knots, especially because I do think investigation is going to lead towards Trump.”
Honig, the former federal prosecutor, said there are signs the DOJ has turned its attention toward Trump and his top allies after months of what he believes was a myopic focus on Jan. 6 rioters, but the select committee’s hearings should add new urgency for prosecutors to make up lost ground.
“I think the committee has provided all sorts of evidentiary leads that DOJ must follow up on and I think that’s why we’re seeing DOJ sort of renew its requests for information,” Honig said. “And I think they’ve given DOJ a road map of sorts.”
“I’m not saying DOJ needs to do exactly what the committee has done, but how do you watch some of these witnesses testify or look at some of these texts that the committee has and not follow up if you’re the DOJ?”
Other Jan. 6 committee members this week echoed Thompson’s more positive tone.
“DOJ obviously is very notoriously private as they should be. But I think it’s obvious there’s some activity going on now. Which to me is a good thing,” Rep. Adam Kinzinger (R-Ill.) said Thursday.
But Rep. Adam Schiff (D-Calif.) noted that a federal judge in California concluded in a civil case as far back as March that Trump likely committed crimes — something that he said should have grabbed DOJ’s attention.
“I’m still concerned. There certainly seems to be more activity at the Justice Department, which I think was positive. But I do continue to have concerns that based on what is already public, as the judge in California found, I believe there’s enough credible evidence to look at the former president’s conduct, and I still don’t see signs of that happening at the department,” Schiff said.
“There’s sufficient evidence because of the multiple lines of effort to overturn the election that he was involved in.”