For days the Jan. 6 committee had been vacillating about the scheduling and format of its final actions, which will include a public meeting Monday. The latest update, according to Rep. Bennie Thompson, D-Miss., the chairman of the committee, is that on Monday, criminal referrals to the Justice Department will be disclosed, along with most of the final report — two days earlier than previously announced. The full report is still expected Wednesday.
Given that the disclosures are happening during the holiday season — when many are likely to be less focused on what’s happening in Washington — it’s important to point out what to look for Monday and what the committee must do before month’s end.
The expected recommendation that former President Donald Trump be prosecuted would be a political thunderbolt. But it’s important to remember that it doesn’t mean that he will be indicted.
The report will be the centerpiece and final work product of the committee. First impressions will be telling. Rep. Liz Cheney, R- Wyo., reportedly wants the focus primarily to be on former President Donald Trump’s role in fomenting the effort to stop Congress from declaring Joe Biden president. Other members have sought a sweeping and comprehensive analysis of all the committee’s evidence. A quick glance will reveal which approach prevailed.
This issue could lead to some divergence among committee members. Congressional committee reports regularly contain separate statements by individual members. We’ll see if any representative disagrees enough with the focus or the report’s recommendations to add separate remarks.
Considering the sweep of the committee’s probe into the events underlying the Jan. 6 insurrection, the other thing to pay attention to is the summary of conclusions accompanying the full report. Politico reported that it will be “voluminous.” But the committee faces a conundrum in preparing it.
On the one hand, a summary would be more accessible for public consumption. For initial news reporting, journalists will gravitate to it rather than the report itself, and so will the general public. On the other hand, some may be tempted to read no further after digesting the summary, even though it may omit key evidence and findings supporting the committee’s conclusions.
But it’s not just the summary that the report may be competing with. Unfortunately, anything that is released from the report on Monday may likely be overshadowed by the committee’s referral of individuals whom the Justice Department should criminally prosecute.
The expected recommendation that former President Donald Trump be prosecuted would be a political thunderbolt. But it’s important to remember that it doesn’t mean that he will be indicted. Special counsel Jack Smith will decide whether and who to indict. Nonetheless, a referral that Trump be indicted may complicate Justice Department decision-making by putting immense public pressure on Smith and, ultimately, Attorney General Merrick Garland.
Trump aside, the committee’s referrals are expected to identify others, including Trump loyalists who promoted election denial, instigated the Jan. 6 attack on the Capitol or otherwise conspired to interfere with the peaceful transfer of power.
Equally important will be the listing of alleged federal crimes in any referral. Potential crimes range from seditious conspiracy — for which a jury recently convicted Oath Keepers leader Stewart Rhodes — to interference with official government functions or perjury if the committee concludes that witnesses lied under oath in its investigation.
Who gets referred to the Justice Department shouldn’t be the only thing that captures our attention.
A criminal conviction for insurrection could have a blockbuster political impact. Under the 14th Amendment, a conviction of a former federal official for insurrection could bar that person from again holding federal office. While there is no guarantee that this would happen to Trump, it’s worth noting that since the provision has never been applied to a candidate running for president, whether it could bar Trump from running for president in 2024 is an unsettled legal question. On Thursday, House Democrats introduced legislation to bar Trump from holding federal office in the future.
Who gets referred to the Justice Department shouldn’t be the only thing that captures our attention, though. Thompson has said that the committee is looking at “five or six” categories of referrals, which may include agencies that license lawyers and the House Ethics Committee.
With so much to look forward to on Monday, getting people to pay attention to what the committee releases afterward may be difficult, but staying tuned may be well worth it. Thompson told reporters “attachments” to the report will be released on Wednesday.
Those could contain a motherlode of critical information, including the identification of some 1,000 people questioned by the committee. That information would be important news to prosecutors, who likely do not know the full list.
And while the timing is unclear about the release of witness transcripts that the committee has promised to publish, they will be just as key. The transcripts, while informing the public and prosecutors, will also educate Trump’s legal defense team. Criminal defense lawyers in a normal investigation do not have access to witness testimony in advance of an indictment.
Be on the lookout for the release of the testimony of high-profile witnesses — and the names of those who refused to cooperate, presumably including former Vice President Mike Pence and members of Congress. Transcripts of the interviews of Virginia Thomas (the wife of Supreme Court Justice Clarence Thomas), former White House counsel Pat Cipollone, former Attorney General William Barr, Ivanka Trump, as well as Secret Service agents and even low-level White House employees will be minutely dissected. After all, anyone in the White House could have overheard critical conversations.
For prosecutors who have subpoenaed key witnesses to testify to a federal grand jury, this would create a unique advantage. They can evaluate whether any witness testified inconsistently to committee investigators and the grand jury. However, unless a thousand transcripts are released in a searchable database, important testimony may not surface for days or weeks.
But as the Republican’s control of the House looms, time is not on the committee’s side. And a critical issue that is still at hand is whether the committee will release the voluminous documentary evidence — text messages, call records and emails — it collected. Candid exchanges, which the senders never believed would see the light of day, could be the most damning evidence of all.
At a minimum, this documentary evidence should be delivered to federal prosecutors, but transparency demands that the public should see them, too.
House Minority Leader Kevin McCarthy has directed the committee to preserve all its materials “for transparency to the American people,” but all indications point to Republicans not advancing the work of looking into what happened on Jan. 6 and who was responsible.
Rather than let the Republicans cherry-pick what else to release, the committee should now disclose everything — texts, emails, telephone call logs and its work papers — for public scrutiny. Let the sun shine bright on the facts. This would be the committee’s greatest public service of all.