(The Hill) — The House committee investigating the Jan. 6, 2021, attack on the Capitol was able to offer additional damning evidence against Donald Trump in its final hearing for the summer, ramping up the pressure on the Department of Justice (DOJ) to more directly investigate the former president.
Thursday’s hearing furthered insight into Trump’s state of mind the day of the riot and after as he removed language from a Jan. 6 address asking rioters to leave the Capitol and on Jan. 7 as he slashed language from an address condemning their actions and struggled to say the election was over.
As the panel plans a break from public hearings over August, observers are focused on the DOJ and whether it will find the committee’s evidence against Trump persuasive enough to bring charges.
There are some signs it is moving in that direction. The Washington Post reported Tuesday night that the department is investigating Trump’s action as part of its criminal probe, subpoenaing phone records of those across the country who aided in his false elector scheme as well as other efforts to stay in power.
“I think the committee has established probable cause to believe that Trump committed obstruction of an official proceeding and conspiracy to defraud the United States. Of course, DOJ must prove guilt beyond a reasonable doubt, so there is more work to be done,” Barbara McQuade, a former U.S. attorney, told The Hill by email.
One goal of the select committee’s public hearings has been to convince federal prosecutors that Trump’s conduct was criminal and worthy of possible prosecution.
Rep. Bennie Thompson (D-Miss.), the panel’s chairman, said during last week’s hearing that the evidence surrounding Jan. 6 presents an urgent need to assign criminal responsibility to all of those involved.
“These facts have gone undisputed. And so, there needs to be accountability. Accountability under the law. Accountability to the American people,” Thompson said. “All the way up to the Oval Office, where Donald Trump embraced the illegal advice of insurrectionists that a federal court judge has said was ‘a coup in search of a legal theory.’ ”
“If there is no accountability for Jan. 6 — for every part of this scheme — I fear that we will not overcome the ongoing threat to our democracy,” he added.
The DOJ seems to be more sensitive to that issue following months of criticism. Attorney General Merrick Garland has vowed that “no person is above the law” in the investigation but has declined to discuss the department’s progress.
“It is inevitable in this kind of investigation that there’ll be speculation about what we are doing, who we are investigating, what our theories are,” Garland said in a Tuesday night interview with NBC News. “The reason there is this speculation and uncertainty is that it’s a fundamental tenet of what we do as prosecutors and investigators is to do it outside of the public eye.”
“We pursue justice without fear or favor. We intend to hold everyone, anyone who was criminally responsible for the events surrounding Jan. 6 or any attempt to interfere with the lawful transfer of power from one administration to another accountable. That’s what we do.”
Renato Mariotti, a former federal prosecutor, said that combined with prior hearings, the committee has done the groundwork for charges relating to inciting a riot — a crime that does not require proving intent.
“I think coming out of these hearings, that is the criminal offense that’s most readily provable based on what we’ve heard publicly,” he said.
“First of all, the fact that he was reluctant on the 6th to make a statement to condemn the insurrectionists or to calm them down suggests that you’re approved of their activities. So there was testimony we heard, by the way, that Kayleigh McEnany allegedly told her deputy that he did not want to use the word peaceful in his tweet. And … during the outtakes, I mean, he did not want to say on the 7th that the election was over, which because to him it wasn’t over.
“I think that’s highly revealing, again, so that goes right to an incitement charge because it suggested he approved their activity.”
Lawmakers on the committee have made it clear their patience with the DOJ is wearing thin.
“If he’s watching today, I’d tell him he doesn’t need to wait on us because I think he has plenty to keep moving forward,” Rep. Elaine Luria (D-Va.) said of Garland in a Sunday interview on NBC’s “Meet the Press.”
Rep. Adam Kinzinger (R-Ill.) said he understands the hesitation to prosecute a prior administration because that’s “what you see in failed democracies.”
“But there is a massive difference between ‘I’m going to prosecute the last administration for political vengeance’ and not prosecuting an administration that literally attempted a failed coup,” Kinzinger said on ABC’s “This Week.”
“And I don’t think a democracy can survive that. So, I certainly hope they’re moving forward. I certainly think there’s evidence of crimes. And I think it goes all the way up to Donald Trump.”
Some legal observers who believe the select committee’s evidence presents a compelling case against Trump are more confident in the DOJ’s handling of its investigation.
Kevin McMunigal, a law professor at Case Western Reserve University and former federal prosecutor, believes that the evidence against Trump is “overwhelming” but that the department is taking the right approach to the investigation by being deliberate and not making public remarks about the evidence.
“Really, the thing that prosecutors ought to do basically is you shut up until you file the charges, and then you present the evidence in court,” McMunigal said. “That’s the way it ought to be done.”
“But I would be devastated if the Department of Justice didn’t eventually file some really serious charges against him,” he added.
Experts stress that the DOJ would be able to fill gaps that the committee can’t, likely by pushing witnesses such as former Trump chief of staff Mark Meadows and others to cooperate.
But Mariotti pointed to a recent report from The New York Times that prosecutors were only more recently discussing directly investigating Trump after hearing damning testimony from Cassidy Hutchinson, a former aide to Meadows in the White House.
“I was concerned about it. Because if they aren’t even discussing these matters, much less aggressively investigating them, I think they’re not doing their job. Because while I believe that any charge against Trump arising from Jan. 6 would be very difficult to prosecute, I don’t think there’s any excuse for not carefully looking at the matter and investigating the matter,” he said.
“I think there’s an assumption amongst members of the public that charges against Trump are very easy to prove and would be very easy to bring and to obtain a conviction,” he added. “That is not true. But nonetheless, that doesn’t excuse a failure to thoroughly investigate the matter.”