In the wake of the explosive testimony offered last week by Cassidy Hutchinson, the executive assistant to Mark Meadows, former President Donald Trump’s chief of staff, the investigation into January 6 appears to be in new legal territory. Specifically, Hutchinson testified to a key piece of information that had not been previously known: that Trump not only knew that the people who attended his rally at the ellipse were armed, but that he took steps to allow them to remain armed and then sent the armed mob to march on the Capitol. In theory, this critical piece of testimony ought to move the ball on potential crimes that include the use of force, like incitement to insurrection, or seditious conspiracy. But before getting too excited about those or any other crimes for which Trump could be indicted, it’s worth remembering the differences between congressional investigations and those conducted by the Justice Department, and how actions taken by the former could complicate the latter.
Let’s start with the different goals of the Justice Department and the January 6 Committee. DOJ is focused on legal accountability. They are concerned with investigating whether any violations of federal law have occurred. By contrast, The Committee is focused on public accountability. They are concerned with laying out all the facts and players involved with January 6, whether or not they committed a crime – the purpose is to educate the public and create a comprehensive public record as part of their oversight power. One investigative process is relatively narrow and secretive, the other is expansive and transparent. We saw this contrast play out most starkly in the special counsel investigation into Russian election interference. The final report produced by Robert Mueller examined the very specific question of whether there was a criminal conspiracy between members of the Trump campaign and Russia. He concluded that the evidence was insufficient to meet the threshold for criminal charges. The Senate Intelligence Committee, by contrast, produced a five-volume report outlining the full scope of Russian interference, including the counterintelligence implications of the frequency and breadth of contacts between members of the Trump campaign and individuals connected to the Kremlin.
Second is the difference in evidentiary standards. The Justice Department must parse every piece of evidence with an eye towards introducing it in a court of law. That means that its evidence has to meet standards for admissibility, and that it must scrutinize witness testimony to ensure that it will withstand cross-examination. The January 6 Committee has an interest, of course, in ensuring that the evidence it presents is credible; but the Committee itself makes that determination, and its veracity is not tested by an adversarial party. Hutchinson’s testimony is a perfect example. Most of her testimony was what would be considered in a court of law to be hearsay – that is, an out-of-court statement that is admitted for the truth of the matter asserted. That doesn’t mean none of it would be admitted: There are several exceptions to the hearsay rule that could, and would, apply to much of her testimony. But prosecutors could not simply bring in her testimony wholesale, and they would need to corroborate her testimony with other evidence and ensure that Hutchinson’s credibility could not be impeached by the defense in any way.
Finally, the two bodies are working on different timelines. The January 6 Committee is working under the gun. Because Republicans object to the Committee’s very existence, a turnover of the House after November would likely mean that it would cease to exist. As a result, the Committee has an interest in working at a fairly fast clip, focusing on the key players, and, in particular, on Trump’s central role in the overall scheme. The Justice Department, however, is not impacted by the midterm elections. In theory, it has until January of 2025 to continue its investigation, and its approach – which Attorney General Merrick Garland has suggested is starting at the bottom and working up the ladder – means that DOJ may not be looking at the same players (yet) that the January 6 Committee is already putting on the public stage.
The Committee’s short runway for completing its hearings, and its focus on presenting as much evidence and testimony as possible, has the potential to set it up on a collision course with the Justice Department. This is because although it has no enforcement power, Congress does have the ability to immunize witnesses. Immunity from a congressional committee prevents any testimony from being used in a criminal prosecution. DOJ can, of course, assemble a parallel case independent of this testimony, but, particularly when Congress is ahead of DOJ’s investigation (as it appears to be here), disentangling the public testimony from its own evidence can be difficult – meaning that congressional immunity can effectively neutralize a criminal prosecution. The clearest example of a criminal and congressional investigation at loggerheads is Iran-Contra, when Congress granted Oliver North and John Poindexter immunity in order to compel their testimony without invoking the Fifth. Both of their criminal convictions were later thrown out on appeal, because a court determined that Independent Counsel Lawrence Walsh couldn’t demonstrate that the evidence against them was obtained independently of their congressional testimony.
This kind of conflict can be avoided with careful coordination between the two investigative bodies. The Mueller investigation, for example, was clearly coordinating closely with the Senate Intelligence Committee as some of its prosecutions, such as those of Michael Cohen and Roger Stone, involved lying to Congress – something that DOJ could charge only if that committee was sharing information obtained from its investigation with Mueller’s team. For reasons that remain unclear, however, this kind of coordination doesn’t seem to be happening between DOJ and the January 6 Committee. The Justice Department recently sent a letter to the Committee requesting transcripts of its depositions (meaning they don’t have them already), and was reportedly caught off guard by Hutchinson’s testimony last week. That doesn’t bode well for an alignment of their steps moving forward. The Committee might decide, for example, that in the interest of getting as much information to the public as possible before November, to offer immunity to individuals who are already in the Justice Department’s crosshairs, like Rudy Giuliani or Jeffrey Clark, to incentivize them to come clean. If these efforts stymie DOJ’s investigations, it is possible that the main players, including Trump, could escape criminal accountability altogether.
I don’t mean to induce mass panic; I’m just cautioning people who are watching the January 6 hearings that the congressional testimony being presented doesn’t necessarily mean that criminal indictments are imminent or forthcoming. It’s also worth noting that there can be advantages to having as fulsome of a public record as possible. This is because a final and comprehensive report by the Committee laying out Trump’s role in the January 6 attempted coup, particularly one that concludes that he is an “insurrectionist,” could offer the basis to disqualify him, under Section 3 of the Fourteenth Amendment, from the presidential ballot in 2024. This option would be an “insurance policy,” if you will, in the event that Merrick Garland is unwilling or unable to move forward on holding Trump criminally accountable. While I would love to see Trump in an orange jumpsuit as much as anyone, the clear and present danger is him holding office again – and the January 6 Committee, more than the Justice Department, might be in the best position to prevent that.