Tensions between the Justice Department and the House Jan. 6 select committee have slipped into public view amid the panel’s first public hearings for its investigation.
A standoff between the parallel probes over the committee’s refusal to share its interview transcripts led federal prosecutors this week to agree to postpone the trial date for a group of Proud Boys leaders charged with seditious conspiracy.
And as lawmakers present compelling evidence of criminality in the effort to overturn the 2020 election, the hearings are adding fuel to the looming question of whether the Department of Justice (DOJ) is adequately investigating those concerns.
In a letter sent Wednesday to the select committee’s chief investigative counsel, the heads of the DOJ’s national security and criminal divisions and the U.S. attorney for D.C. renewed their request for the lawmakers to share transcripts for all of their witness interviews.
“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,” the letter reads. “Accordingly, we renew our request that the Select Committee provide us with copies of the transcripts of all the interviews it has conducted to date.”
The committee has indicated that it plans to release its transcripts in September, and Rep. Bennie Thompson (D-Miss.), the panel’s chairman, said this week that he does not intend to disrupt his own investigation by accelerating that timeline.
“We will work with them, but we have a report to do,” Thompson told reporters on Thursday. “We are not gonna stop what we’re doing to share the information that we’ve gotten so far with the Department of Justice. We have to do our work.”
The most recent episode in the standoff, which first emerged last month, is just the latest sign of tension between the two branches’ inquiries into the Jan. 6, 2021, attack.
The strained relationship was also apparent as the department for months dragged its feet in acting on the House’s criminal referrals of two former Trump aides — White House chief of staff Mark Meadows and social media director Dan Scavino — for refusing to comply with select committee subpoenas.
The Justice Department ultimately declined to charge Meadows and Scavino with contempt, provoking an angry response from the panel.
Now, as the committee is presenting its public case against former President Trump and his inner circle for trying to overturn the 2020 election, the hearings thus far appear designed to pressure the department into taking action by holding the leaders of the schemes accountable.
And for some critics who think the Justice Department has been lagging in investigating the Trump White House’s potential criminal liability, the hearings have shown a stark disparity in the parallel probes.
“In a way, the structure of these hearings, the product of these hearings, has kind of been an indictment of the DOJ,” said Ankush Khardori, a former federal prosecutor who handled major fraud cases at the department. “DOJ could have been doing this stuff itself.”
“And I think some people in the public are probably scratching their head saying like, ‘Why are these questions coming from Congress about whether Trump was lying for months about election fraud? … And why am I learning these damning facts, that would seem highly relevant to a criminal investigation of the White House, from Congress?’”
The Justice Department suggested in its letter this week that by denying federal prosecutors access to interview transcripts, the select committee has hindered its ability to conduct the sort of high-level investigations and prosecutions that the lawmakers have been calling for.
While it’s unclear whether the department is pursuing any investigations into the select committee’s most high-profile witnesses, the effort to obtain the transcripts is likely more driven by the ongoing prosecutions implicated by the legislative probe.
Prosecutors said the standoff forced them to agree to delay the criminal trial for the group of Proud Boys charged with seditious conspiracy.
“DOJ has good arguments for why they need these interviews,” said Danya Perry, a former federal prosecutor and deputy state attorney general in New York.
Perry said it doesn’t necessarily indicate that prosecutors are looking for information for ongoing investigations or to open new ones but rather for active prosecutions where defendants believe the transcripts could provide exculpatory evidence.
“[Federal prosecutors] don’t technically have an obligation to go out of their way to get this information and provide it, but, as a practical matter, they may feel it’s best practice,” she said. “But it’s not unreasonable for the committee to be dragging its feet, in terms of not turning over these transcripts until the end of their hearings.”
The select committee has expressed reservations about providing the executive branch with unfettered access to its work product before it’s made public. One concern might be that complying with the expansive request would make it appear that the two entities are colluding in a political manner, damaging public perceptions of both investigations.
One member of the select committee, Rep. Adam Schiff (D-Calif.), said last month that the panel would be more amenable to providing access to its records if the DOJ were to explain what it was looking for.
“I think they need to be specific about what they need and why they need it,” Schiff said. “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?” he said.