Mueller prosecutor on the DOJ's handling of January 6

The tenacious work of the Jan. 6 committee has transformed how we think about the Jan. 6 rebellion. It should also transform the Justice Department’s investigation into efforts to overturn the 2020 election.

Before the hearings, federal agents and prosecutors were performing a classic “bottom up” criminal investigation of the Jan. 6 rioters, which means prosecuting the lowest-ranking members of a conspiracy, flipping people as it proceeds and following the evidence as high as it goes.

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But that is actually the wrong approach for investigating the Jan. 6 insurrection. That approach sees the attack on the Capitol as a single event — an isolated riot, separate from other efforts by Donald Trump and his allies to overturn the election.

A myopic focus on the Jan. 6 riot is not the way to proceed if you are trying to follow the facts where they lead and to hold people “at any level” criminally accountable, as Attorney General Merrick Garland promised.

The evidence gathered in the hearings describes a multiprong conspiracy — what prosecutors term a hub and spoke conspiracy — in which the Ellipse speech by President Trump and the Jan. 6 attack on the Capitol were just one “spoke” of a grander scheme.

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Instead, what the hearings have revealed is evidence of a plot orchestrated by Mr. Trump and his allies in the White House and elsewhere — including players from the Mueller investigation like Roger Stone, Michael Flynn and Rudy Giuliani as well as new players like Jeffrey Clark and John Eastman. The “spoke” of the Jan. 6 riot should be seen and investigated simultaneously with the other “spokes”: orchestrating fake electors in key states, pressuring state officials like those in Georgia to find new votes, plotting to behead the leadership of the Justice Department to promote a lackey who would further the conspiracy by announcing a spurious investigation into election fraud, and pressuring Vice President Mike Pence to violate the law.

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[T]he evidence that Mr. Trump lied in a statement about Mr. Pence’s agreeing that he had the power to reject electors undermines the defense that Mr. Trump was acting in good faith and honestly believed he had won the election. And Mr. Trump’s conduct in the White House after his speech at the Ellipse and during the Jan. 6 attack, which includes remarks, reported from testimony by the former White House aide Cassidy Hutchinson, in which Mr. Trump condoned the chants calling for hanging of the vice president of the United States, is strong evidence of his intent for a plan to upend a democratic election.

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We have seen the unusual public filing of a letter from Justice Department leadership seeking access to committee evidence, something largely unnecessary if it had already obtained that evidence. And the fact that the letter was sent is a clear sign of a breakdown in the relationship between the two branches, something I did not see even during high-profile investigations like Enron and the Mueller investigation.

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Unsurprisingly, the “spoke” involving the Justice Department itself has attracted acute interest. Recently, federal agents conducted a search of the home of Mr. Clark, whom Mr. Trump considered elevating to be acting head of the Justice Department, and seized the phone of Mr. Eastman, a lawyer who advised Mr. Trump on efforts to overturn the election.

But other signs are not so encouraging: Department prosecutors were reportedly surprised by the testimony of Ms. Hutchinson. That is not a sign of a robust investigation into the facts. The department has more tools than Congress does to learn the truth.

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Department lawyers and congressional committees usually work collegially to avoid these issues, something that can happen when Congress has faith in the diligence and resolve of the Justice Department. That does not appear to be happening here.

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[W]hat I have seen in this inquiry is not typical behavior from the Justice Department. Usually, department prosecutors and agents don’t want Congress jumping ahead of their investigation, and they work hard to make sure that doesn’t happen. The department wants to interview witnesses first, and prosecutors make sure that targets are fully truthful about their own potential wrongdoing and that their testimony is corroborated; use tools to flip recalcitrant witnesses; and build a case without revealing evidence to other prospective witnesses — efforts that can falter if Congress is conducting private and public interviews that may inadvertently undermine the strongest possible criminal case.

  Andrew Weissmann @ NYT

...but hey, do what you want...you will anyway.