After interviewing more that 1,000 witnesses, the House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol announced it will hold public hearings starting this week on its findings beginning next Thursday, June 9. Meanwhile, the Department of Justice, the only federal agency empowered to prosecute those who committed crimes in connection with the insurrection, recently requested the transcripts of the committee’s witness interviews.
This request by the DOJ seems to turn the usual investigative model on its head, as federal prosecutors almost always want first crack at important witnesses who may be needed in future criminal prosecutions. And last week, the DOJ indicted former White House trade adviser Peter Navarro for contempt of Congress. On the other hand, it declined to indict former Trump chief of staff Mark Meadows and his former White House deputy chief of staff for communications Dan Scavino. So, is there a method to this investigative madness?
As a former career federal prosecutor, I occasionally encountered situations where multiple government agencies and/or different jurisdictions were interested in the same witnesses for different reasons.
As a former career federal prosecutor, I occasionally encountered situations where multiple government agencies and/or different jurisdictions were interested in the same witnesses for different reasons. For example, when I was investigating crimes in the District of Columbia, the D.C. city government often had an interest in those same crimes. Accordingly, the D.C. City Council might seek to secure the testimony of some of the same witnesses I needed to prove the crimes I was prosecuting.
So why is this a problem? The reality is that different agencies, organizations and sovereignties may have different goals and motives when dealing with a witness. It is a prosecutor’s responsibility to develop witness testimony as completely, truthfully and accurately as possible to maximize its value in a criminal investigation. Additionally, prosecutors have a keen interest in preserving that testimony — generally by having the witness testify under oath before the grand jury — as soon as possible after the commission of the crime so the witness’s recollection is fresh, and hence more likely to be accurate.
The House Jan. 6 committee is kicking off the first of its public hearings on Thursday, June 9 at 8 p.m. ET. Get expert analysis in real-time on our live blog at msnbc.com/jan6hearings.
However, if another entity is interested in the testimony of a witness — a city or state government, or Congress, for example — that entity might have a different goal. A city government might be dealing with a lawsuit brought by the victim of crime, in which case the city attorneys might look to craft the witness’s testimony in a way that is designed to help prove that city employees — police, EMS workers, 911 operators — acted properly.
Suffice it to say, prosecutors invariably want to go first. This background is offered to highlight just how unusual it is for Congress to seemingly take the investigative lead with witnesses who could be critically important to any eventual criminal insurrection-related prosecutions.
Many have criticized the DOJ for what they perceive as investigative sloth. Why didn’t federal prosecutors first present these hundreds of witnesses to the grand jury and then make them available to the Jan. 6 committee after their testimony was preserved under oath — or “locked-in,” as federal prosecutors put it? Although there are some significant detriments to this unusual investigative approach, there are also some real benefits.
Timing is a big one. It would take a long time to interview, prepare for a grand jury appearance and then present to the grand jury 1,000 witnesses. Indeed, I question whether the DOJ could have moved through those kind of witness numbers as quickly as the Jan. 6 committee has.
Even more importantly than the timing issue is the fact that grand jury testimony is secret. Prosecutors cannot reveal what any witness said before the grand jury, unless and until the witness testifies at a public trial. So, whereas we are about to see, beginning on June 9, the fruits of the committee’s labors, the public likely would not have learned anything about what the witness had told a grand jury for a long time, if at all. Thus the current scenario has significant benefits given the importance of transparency.
Another benefit: Testimony from witnesses who may have some criminal involvement in the insurrection is far more likely to have been captured by the Jan. 6 committee than if those witnesses had first been subpoenaed to a grand jury.
Even more importantly than the timing issue is the fact that grand jury testimony is secret.
Witnesses like Rudy Giuliani and Donald Trump Jr., both of whom spoke at then-President Donald Trump’s pre-riot pep rally at the Ellipse on Jan. 6, have possible criminal exposure for inciting the insurrection as a result of their inflammatory speech. Additionally, Don Jr. sent potentially incriminating texts to then-chief of staff Mark Meadows, urging that he take steps to overturn the election results. Giuliani engaged in what sure seems like frivolous litigation attacking the election results, which may pose additional criminal problems for him.
As a result of their conduct, Don Jr. and Giuliani would have special rules apply to them if they were subpoenaed to a grand jury. Specifically, they would be viewed as either “targets” or “subjects.” These designations have legal implications. Before federal prosecutors can present targets or subjects to the grand jury, they must advise those witnesses of their right against self-incrimination and their right not to testify. Having been through this exercise many times, I know this often has the effect of shutting down the witness. If the witness invokes their right against self-incrimination and declines to testify, that witness’s information may be forever lost to the investigation (unless prosecutors decide to immunize the witness, extinguishing their right against self-incrimination and compelling their testimony).
However, there is no requirement that the Jan. 6 committee administer such warnings to witnesses. To be sure, witnesses can still invoke their Fifth Amendment right in a congressional hearing, but I think it’s a fair observation that they are less likely to than in a grand jury proceeding. One other significant difference between the two settings: If a witness invokes his or her right against self-incrimination in a grand jury room, that matter is also secret by law. By contrast, when witnesses have pleaded the Fifth before the Jan. 6 committee, the public promptly learned about it, as was the case with Roger Stone.
Another benefit: The Jan. 6 committee has developed incriminating evidence that would not have been developed had the DOJ gone first. The committee said four witnesses — Meadows, Steve Bannon, Peter Navarro, and Dan Scavino — were guilty of contempt of Congress by refusing to comply with lawfully issued congressional subpoenas. These four men were referred to the DOJ for prosecution, although it seems like Meadows and Scavino have received a pass on the misdemeanor contempt charge.
However, even though the DOJ declined to indict Meadows and Scavino — likely the a result of an Office of Legal Counsel memo advising against contempt indictments for executive branch officials closest to the president — they’re not out of the woods yet. The fact that they defied congressional subpoenas rather than testify about Trump’s alleged misconduct can be used as incriminating evidence in the context of a conspiracy to defraud the United States, in violation of 18 USC section 371. This still gives the DOJ leverage that prosecutors can use in their efforts to convince Meadows and Scavino to cooperate fully and truthfully with the ongoing investigation.
This still gives the DOJ leverage that prosecutors can use in their efforts to convince the other two men to cooperate fully and truthfully with their ongoing investigation. Recall the oft-repeated Watergate moral: if the crime doesn’t get you, the cover-up will. Another important, if somewhat complicated, benefit is that every witness who refuses to cooperate with the Jan. 6 committee, either by refusing to participate in a voluntary interview or violating a congressional subpoena, may have additional criminal exposure. Recall the oft-repeated Watergate moral: If the crime doesn’t get you, the cover-up will. If a witness has information about the crimes of others in connection with the insurrection and Congress seeks that information, the witness plainly is involved in a cover-up if the witness refuses to provide said information. Let’s use Meadows as an example. As Trump’s chief of staff at the time, Meadows undeniably has important and possibly incriminating information about Trump’s conduct on and around Jan. 6. But rather than provide that information to the Jan. 6 committee, he sought to conceal it. He decided he would rather be held in contempt of Congress and referred for prosecution than testify about Trump’s conduct. And Meadows’ problems don’t stop just because DOJ has declined to prosecute after the contempt referral. By refusing to share his information, which may include Trump crimes, he may have potential exposure for crimes like accessory after the fact — knowing that a crime against the United States has been committed and assisting the perpetrator in avoiding responsibility for that crime — and misprision of a felony — knowing someone has committed a felony “cognizable by a court of the United States” and concealing that crime from authorities. And lest we forget, a federal judge, David Carter, has already declared it likely that Trump, together with John Eastman, committed the felony offenses of obstructing official proceedings and conspiracy to defraud the United States. This puts the crime of misprision squarely in play for anyone who continues to cover for Trump by refusing to testify to the Jan. 6 committee. One more little-known benefit: The investigation being run by the Jan. 6 committee is not being conducted by your typical congressional staff. The chief investigative counsel is a former federal prosecutor named Tim Heaphy. Heaphy is an extremely accomplished RICO prosecutor who, in the early 2000s, headed up the Washington RICO prosecution dubbed “Murder Inc.” I worked with Heaphy for many years at the D.C. U.S. attorney’s office and am familiar with his work (and tried multiple RICO cases that were part of the “Murder Inc” conspiracy). The Jan. 6 investigative team is populated with many former federal prosecutors with vast experience and expertise in gang/RICO cases, public corruption cases and other areas of federal practice. As I’ve watched the investigation unfold in the public reporting, I’ve seen the blueprint of an adept and savvy criminal investigation. If the DOJ did decide to take an investigative backseat, it’s comforting that the investigative car is being driven by experts. To be clear, there are certainly some detriments to the Jan. 6 committee going first. Any eventual indictments and prosecutions of the command structure of the insurrection (as opposed to the foot soldiers who attacked the Capitol) will take longer as a result. Unfortunately right now, time clearly is of the essence. Another potential challenge is that DOJ prosecutors will try all future cases with the sworn testimony of the witnesses as developed — locked-in — by others. However, this challenge can be mitigated by the DOJ prosecutors following up with each witness and developing additional testimony. One final observation: We really don’t know if or to what extent the DOJ is bringing up the investigative rear. Grand jury proceedings are secret. And Attorney General Merrick Garland’s DOJ has kept leaks to a minimum. I suspect much is occurring before the grand jury that may overlap with the work of the Jan. 6 committee. What we do know is that the nature and scope of the attack on our democracy — an attack from within — is unprecedented in American history. Such an unprecedented series of crimes may well call for an unprecedented investigative approach by the DOJ. For the sake of our republic, let’s hope it proves to be the right approach.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
