Lawmakers investigating the January 6 attack on the Capitol are increasingly coming forward with critical statements, court filings and more to send a no-nonsense message to Attorney General Merrick Garland and the Justice Department.
President Donald Trump and his allies likely committed crimes, they say. And it’s up to you to do something about it.
“Attorney General Garland, do your job so we can do ours,” urged Rep. Elaine Luria of Virginia.
“We stand by our responsibility. The Justice Department must do the same,” reiterated Rep. Adam Schiff, D-Calif.
Her rhetoric, which this week focused on two committee-sanctioned disregards of Congressional resolutions, is just the latest example of the pressure campaign being waged by lawmakers. It reflects a stark reality: while they can investigate January 6 and issue subpoenas to gather information, only the Justice Department can file criminal charges.
Committee members view the case they are building against Trump and his allies as a once-in-a-generation circumstance. If not fully pursued, they could set a dangerous precedent that threatens the very foundations of American democracy.
Lawmakers seem almost certain to send a criminal referral to the Justice Department once their job is done.
It all puts Garland, who has spent his tenure protecting the Justice Department from political pressures, in a precarious position. Any criminal charges related to Jan. 6 would spark a firestorm, sending prosecutors back into the partisan crossfire that proved so damaging during the Trump-Russia influence probe and a Hillary Clinton email probe.
Garland has not offered any public indications as to whether prosecutors might be considering a case against the former president. However, he has vowed to hold “all perpetrators of January 6th at every level” accountable, saying that this would include those who “were present that day or were otherwise criminally responsible for the attack on our democracy”.
It is already the largest prosecution in the department’s history – for rioters who invaded the Capitol on January 6 and members of extremist groups accused of planning the attack. More than 750 people have been charged with federal crimes. Over 220 defendants have pleaded guilty, more than 100 have been convicted and at least 90 others have trial dates.
Parts of the department’s investigation have overlapped with those of the committee. One example is in late January, when the judiciary announced it had opened an investigation into a fake list of voters who falsely attempted to declare Trump the winner of the 2020 election in seven swing states, which Joe Biden won. Three days later, lawmakers subpoenaed more than a dozen people involved in the effort.
But the January 6 committee wants more. Her message was reinforced this week when a federal judge in California – District Judge David Carter, a Bill Clinton-appointed representative – wrote that it was “more than likely” that Trump himself committed crimes in trying to certify the election to stop in 2020.
The practical effect of that ruling was to order the release of more than 100 emails from Trump adviser John Eastman to the committee dated Jan. 6. But lawmakers focused on a specific passage in the judge’s opinion that characterized Jan. 6 as a “coup d’etat.”
“DR. Eastman and President Trump launched a campaign to overthrow a Democratic election, an action unprecedented in American history. Their campaign was not limited to the ivory tower – it was a coup in search of a legal theory,” wrote Carter.
However, experts warn that Carter’s opinion is only in a civil proceeding and does not conform to the long-standing fee policy that the Justice Department must comply with. Justin Danilewitz, a Philadelphia-based attorney and former federal prosecutor, noted that the department faces a greater burden of proof in court to show that presidential immunity should not apply. And he said the legal advice Trump received from Eastman “undermines the conclusion of corrupt or fraudulent intent.”
The department will be guided by evidence and law, he said, “but the social and political ramifications of a decision of this nature will not be far behind Attorney General Garland and his staff.”
“A decision to file criminal charges or not will have significant implications,” he added.
Taylor Budowich, a spokesman for Trump, called the judge’s ruling an “absurd and baseless ruling by a Clinton-appointed judge in California.” He called the House Committee investigation a “circus of partisanship”.
Another area of friction with the Justice Department is efforts to enforce subpoenas by disregarding Congressional indictments.
The House of Representatives in December approved a contempt for contempt for former White House Chief of Staff Mark Meadows after he stopped working with the Jan. 6 panel. While a previous contempt for disrespecting former Trump adviser Steve Bannon led to an indictment, the Justice Department has been slower in deciding whether to prosecute Meadows.
“The Justice Department is charged with defending our Constitution,” Rep. Liz Cheney, the Republican committee chair, said at a hearing this week. “Departmental leadership should not employ any immunity doctrine that might prevent Congress from fully uncovering and addressing the root causes of the January 6 attack.”
A decision to pursue the contempt allegations against Meadows would have to come from senior prosecutors at the US Attorney’s Office in Washington before senior Justice Department officials would weigh and decide how to proceed.
Bringing a case against Meadows would be more of a challenge for prosecutors than the case against Bannon, in large part because Bannon was not a White House official during the riot.
The Justice Department has long maintained that senior advisers generally cannot be compelled to testify when a president invokes executive privileges, as Trump has done. And an indictment could undermine the long-standing principle that allows the executive branch of government to keep most discussions private.
While the majority of committee members have upped the pressure on Garland, one member, Democratic Rep. Jamie Raskin of Maryland, has not gone that far.
“It is my firm belief that we are restoring the tradition of respect for the independence of the law enforcement function,” Raskin told reporters this week. “That was one of the things that got thrown away during the Trump era. And that’s why I think Congress and the President should let the Justice Department and the Attorney General do their job.”
“Attorney General Garland is my constituent,” Raskin added, “and I don’t beat up my constituents.”