The findings presented at the U.S. House panel hearings into the Jan. 6, 2021, riot at the U.S. Capitol could impact the Justice Department’s own investigation into the attack by providing new leads and putting pressure on prosecutors to speed up their probe, some legal experts suggest.
The Justice Department “is going to pay close attention to what’s happening, who the witnesses are and what they’ve got to say,” said Richard Ben-Veniste, who served as one of the lead prosecutors at the Watergate Special Prosecution Office in the 1970s.
Glenn Kirschner, a former assistant U.S. attorney for the District of Columbia, said he certainly would have been watching Thursday night’s hearing “if I were still a federal prosecutor involved in investigating the insurrection.”
The U.S. House select committee investigating the Jan. 6 attack on the Capitol building held its first public hearing to reveal the findings of a year-long investigation. The committee has conducted more than 1,000 interviews with people connected to the siege and collected more than 140,000 documents.
More than 840 arrests
Meanwhile, the Justice Department (DOJ) has been conducting its own investigation. According to its website, the department has made more than 840 arrests, laid hundreds of charges and recorded more than 300 guilty pleas, including three people who pleaded guilty to the federal charge of seditious conspiracy.
Only the Justice Department can lay charges, but the House panel can send the department criminal referrals.
On Thursday night, on prime-time television, the panel laid out its initial findings, while accusing former U.S. president Donald Trump of leading a multi-step conspiracy aimed at overturning the results of the 2020 presidential election.
The hearing featured never-before-seen video of police officers being brutally beaten and of right-wing extremists leading the crowds into the Capitol. But it also included video testimony from former U.S. attorney general William Barr and others who said they told Trump at the time that his fraud claims about the election had no merit.
Randall Eliason, a former assistant U.S. attorney for the District of Columbia, said there’s always a possibility that committee investigators have found something that the Justice Department has not yet discovered.
“The potential is there, I guess. I don’t feel like it’s super likely that the DOJ is going to learn much that it doesn’t already know,” Eliason said. “I think the DOJ knows a lot more.than we’re aware of. I tend to doubt the DOJ is going to learn some new bombshell information.”
Kirschner said he believes that some, but relatively little, of what was presented Thursday night was a revelation to the Justice Department.
‘You want to have every detail nailed down’
Still, the hearings could certainly have an impact on the department’s investigation — much like a media story can prompt further investigation from law enforcement, Kirschner said.
“The media can report something, and that is what jump-starts a criminal investigation. We can get information from any source that suggests crime has been committed, that we may need to look into it. The same is true from these congressional hearings.”
David Levine, a law professor at the University of California, Hastings College of the Law in San Francisco, said it’s certainly possible that there’s material that the House committee has uncovered that members of the Justice Department didn’t know about and that that material could provide new leads.
Levine said the committee may also provide the missing puzzle piece of evidence that eventually allows the Justice Department to indict a high-profile person involved in some stage of the riot.
“You want to have every detail nailed down. You don’t want any ambiguity. And you may end up with prosecutors saying, well, we don’t have it absolutely nailed down,” he said.
“So what the congressional committee data might lead to is tying things up enough for allowing the Justice Department to pursue leads.”
The department and, in particular, Attorney General Merrick Garland have faced criticism for the slow pace of their investigation.
Eliason, however, defended the pace of their investigation, saying it’s going as fast as can be expected given its scope and unprecedented nature.
Consider accelerating timetable
Kirschner said the hearings could affect the speed at which the investigation is proceeding.
“The party line that I lived by for decades … is that we don’t let public opinion impact the pace or the nature of our criminal investigation,” he said.
“But let me tell you, the people at the Department of Justice are also human beings. And when we sit there and we watch public hearings … how can human beings not be moved by that and at least consider we need to accelerate our timetable?”
That political committee hearings and probes are taking place at the same time as a criminal investigation is not uncommon. During the Watergate scandal, a special prosecutor was appointed by the Justice Department to investigate alleged crimes by the Nixon White House.
The office conducted its investigation and prosecuted cases at the same time that a Senate committee and impeachment proceedings were taking place.
Those public hearing transcripts from the Senate select committee were, “in fact, useful for us, and we built upon that,” former prosecutor Ben-Veniste said.
He said while the Senate committee proceedings were monitored, there was no direct communication with its members.
There’s likely no formal interaction between the House committee and the Justice Department, Ben-Veniste said. But he added that there would be some “points of inflection” — situations where DOJ officials would want to be apprised of the actions of the committee.
For example, if the House committee was considering granting immunity to some witnesses, the Justice Department might want to have the opportunity to object, if such a move would compromise anything ongoing or anticipated in its investigation, Ben-Veniste said.
Justice Department request rejected
Last month, the House panel rejected a request from the Justice Department for access to the committee’s interviews. Democratic Rep. Bennie Thompson, the committee’s chair, said it was “premature” for the committee to share its work at this point because the panel’s probe is ongoing.
However, Kirschner said he believes there is still informal communication going on between the two groups.
“If anybody thinks there is not lots of co-ordination and communication — proper, ethical, honest, appropriate communication — going on between the [House] committee and the prosecutors at the Department of Justice, well, then they don’t know the people involved.”