For weeks, if not months, leadership at the Department of Justice has repeatedly told us they will follow the facts and the law and will hold Jan. 6 wrongdoers accountable “at any level.” Yet they provide few updates or concrete information. We have seen zero overt law enforcement activity against anyone but the foot soldiers of former President Donald Trump’s insurrection. In substance, the DOJ is asking the American people to trust them. But following the House’s final (at least for a while) Jan. 6 committee hearing on Thursday, that trust is eroding.
Over the course of these eight public Jan. 6 committee hearings, we have seen compelling (not circumstantial) evidence of Trump’s potential crimes.
Over the course of these eight public Jan. 6 committee hearings, we have seen compelling (not circumstantial) evidence of Trump’s potential crimes. Former acting Deputy Attorney General Richard Donoghue testified that Trump told a group of department officials that it didn’t matter if the election was rife with fraud, adding, “just say the election was corrupt and leave the rest to me and the Republican congressmen.” This is direct evidence — relayed by Donoghue under oath — of criminal intent. Trump apparently neither believed nor cared whether there was provable evidence of widespread election fraud, he simply wanted his DOJ officials to lie — “just say the election was corrupt” — and let him use that lie to help steal a second presidential term.
Former Attorney General Eric Holder described these statements as a “smoking gun” proving Trump’s corrupt intent, adding that it would be “laughable” for anyone to argue otherwise to a jury. I agree wholeheartedly with Holder. (Full disclosure: He was my direct boss when he was the United States attorney for the District of Columbia.) And for anyone who might dismiss Holder as hopelessly partisan, it’s worth remembering that before he served as U.S. attorney for D.C., he was nominated to the Superior Court of the District of Columbia — by President Ronald Reagan.
Similarly, Cassidy Hutchinson testified that prior to Trump’s Jan. 6 speech on the Ellipse, he was informed that some of his supporters were armed with rifles, pistols and other deadly weapons. In a staggering display of callousness and disregard for the safety of others, Trump responded by demanding that security take down the metal detectors and let his supporters in anyway, because “they’re not here to hurt me.” As a career prosecutor, I would argue that the only reasonable inference from that statement is that Trump fully understood his armed supporters were a danger to lawmakers certifying the election win of his opponent. Trump also said that after his speech (i.e., after the metal detectors were removed and his armed mob was allowed in), they would all then march to the Capitol. This is powerful, direct evidence — relayed by Hutchinson under oath — that Trump intended to lead an armed mob to stop the election certification.
As we’ve watched this staggering — and, I’d hasten to add, legally admissible — evidence of Trump’s alleged crimes accumulate, DOJ inaction feels increasingly inexcusable.
Add to that the alarming recent New York Times reporting claiming Hutchinson’s testimony “jolted” the DOJ into a more direct consideration of Trump’s potential criminal responsibility. This revelation prompted former federal prosecutor Andrew Weissmann to accuse the DOJ of a “myopic focus on the Jan. 6 riot,” with too few signs of a “robust (DOJ) investigation.”
Even former U.S. Attorney (and MSNBC Columnist) Barb McQuaid, a long-time federal prosecutor with impeccable credentials and a healthy dose of circumspection, is now asking, “DOJ, you up yet?”
Lawlessness, unaddressed, begets lawlessness. And we now see Team Trump engaging in possible witness tampering as well. Given the lack of DOJ action, there seems to be no serious deterrence in place.
And to be clear, if the revelations of Donoghue and Hutchinson, detailed above, are smoking-gun evidence, witness tampering is loaded-gun evidence. Professionally, I’ve had far too many chances to deal with instances of such meddling. Corruptly attempting to influence, impede or prevent the truthful testimony of a witness strikes right at the very heart of the integrity of any investigation, congressional or criminal. Prosecutors take these allegations seriously, and investigate them as quickly as possible.
Is federal law enforcement doing the same?
Lest we forget, the House voted to hold Mark Meadows in contempt of Congress for refusing to appear before the Jan. 6 committee. Meadows, Trump’s former chief of staff, appeared so determined to conceal Trump’s behavior that he risked possible criminal charges. But DOJ declined to indict. In a legal sense, I think DOJ should be looking at Meadows not only for the crime of contempt of Congress but also the federal offenses of accessory after the fact and misprision of a felony. In a lay sense, Meadows certainly appears to be involved in a cover-up. And still, he has been given a pass.
This failure to charge Meadows, Trump or any of the other Trump associates who seem to be in the thick of the corrupt efforts to overthrow our democracy exposes a deep injustice presently at play.
The testimony of defendant Stephen Ayres during the last hearing highlighted the DOJ’s disparity of treatment. Trump deceived, duped and lied to the American people, telling them their votes were stolen, the presidential election was corrupt, urging them to come to D.C. for a “wild” protest and then whipping them into a frenzy and instructing them to fight like hell.
Thousands of loyal supporters believed these lies and acted on these commands. And now, hundreds upon hundreds of his supporters are being prosecuted, convicted and imprisoned for doing precisely what their president told them to do.
And where is Donald Trump? Golfing and holding rallies at which he still pushes the big lie, inciting and enraging those who still choose to listen to a two-bit conman. And almost a year and a half after Joe Biden’s inauguration, Wisconsin state Assembly Speaker Robin Vos says Trump called him this very month and pushed him to try to overturn the results of the 2020 presidential election.
Such inequity is a stain on our government.
Now, I have long cautioned that we should give the DOJ enough time to do its thing. But my view has always been premised on the assumption that DOJ has, indeed been doing a thorough, far-reaching, aggressive investigation behind the scenes. My growing concern with each new data point is that for reasons that may have little to do with the facts or the law, DOJ is not doing the kind of investigation our democracy needs to survive.