Former prosecutor says highly detailed report from the Capitol assault committee 'equals a detailed prosecution memo'
After 18 months investigating Donald Trump's attempts to overturn his 2020 election loss, the House committee for the January 6 uprising has provided the Justice Department with a complete legal roadmap as he pursues potential criminal charges against the former US president.
Amid reports the committee had worked closely with the DoJ by sharing evidence gathered from 1,000 witness interviews and thousands of documents, former federal prosecutors said the panel's work offered ample evidence to strengthen DoJ prosecutors' arduous task of investigating the former US president and his top loyalists.
The sheer volume of evidence against Trump amassed by the panel prompted its unprecedented decision to send four criminal referrals to the DoJ for Trump and several top allies about their multi-track planning and fraudulent claims of fraud to block Joe Biden from office.
While the referrals didn't compel the justice department to press charges against Trump or anyone else, the overwhelming body of evidence the panel amassed should enhance its investigation, former federal prosecutors said.
The massive evidence gathered by the panel is the basis for accusing Trump of obstruction of Congress, inciting rebellion, conspiracy to defraud the US and making false statements.
"The root cause of January 6 was one person, former president Donald Trump, who was followed by many others," the committee wrote in a detailed summary of its findings days before the release of its 800-plus page final report on Thursday.
The panel's blockbuster report concluded that Trump criminally plotted to undo his 2020 loss and "provoked his supporters to violence" in the Capitol with baseless claims of widespread voter fraud.
Former prosecutors said the committee's detailed factual presentation should enhance some of the DoJ's overlapping investigations including a months-long probe into a bogus voter scheme that Trump aided with John Eastman, a conservative attorney who was also referred to the justice department for prosecution.
"The committee's final Jan. 6 hearing and lengthy executive summary make a strong case in support of its criminal references to Trump, Eastman and other unnamed individuals," former DoJ inspector general Michael Bromwich told the Guardian.
"While the directives carry no legal weight, they do provide an unusual preview of potential allegations that may be effective in influencing public opinion," Bromwich said.
Daniel Richman, a former federal prosecutor who is now a professor at Columbia Law School, also said the panel's work should have a positive impact on the DoJ investigation.
"While the committee hearings provided a good preview of the theory of criminal liability that has now been laid out in its summary, the new [executive summary] document does an outstanding job of compiling the evidence the committee gathered," Richman told the Guardian.
"The committee presentation went far beyond a call for heads to roll, and is a detailed prosecution memo that the DoJ should take into account."
Other former prosecutors said they agreed. "It's hard to imagine that the DoJ could look at this set of facts and reach a different conclusion," said Barbara McQuade, a former US attorney for eastern Michigan.
"While the committee's referral to the justice department is not binding in any way, and the DoJ will make its own independent assessment of whether the charges are appropriate, the most important part of this report are the documented facts."
The factual gold mine has caught the attention of special counsel Jack Smith, who was tapped by attorney general Merrick Garland last month to oversee the DoJ's expansive criminal investigation into the January 6 mutiny.
Smith, on Dec. 5, in a letter, requested all of the committee's materials regarding its 18-month investigation, as first reported by Punchbowl News.
Upon receiving the letter, the panel sent Smith's team transcripts and documents, mostly regarding Eastman's key role in promoting a sham voter scheme along with Trump and others to block Congress' certification of Biden.
The House panel has also provided the DoJ with all the text messages of former White House chief of staff Mark Meadows and other relevant evidence.
The organizers have also shared transcripts of several witness interviews regarding fake voter tactics, plus efforts by Trump and his loyalists to push Georgia and several other states that Biden won to overturn their results.
According to the Politico report, the transcripts the panel sent to special counsel included interviews with some of the top attorneys associated with Trump such as former vice president Mike Pence's attorney Greg Jacob, former White House adviser Pat Cipollone, former attorney general Bill Barr, Jeffrey Rosen, who succeeded Barr as AG, and Rosen's deputy, Richard Donoghue.
However, there is potential for harm in some of the evidence the panel has disclosed in its extensive investigation, former prosecutors said.
"The very large piece of evidence developed by the January 6 committee is a mixed blessing for the DoJ," Bromwich said. "While it undoubtedly provides evidence that the DoJ has not collected or developed it, it will take time and resources to master and fully understand its significance."
“More importantly, it may contain landmines of various kinds – for example, witnesses whose public testimony was strong and unequivocal, but whose initial testimony was incomplete, misleading or false. That doesn't matter in the context of a congressional inquiry; especially important when a prosecutor needs to decide whether a witness would be vulnerable to attack in cross-examination based on their entire testimony.”
Another former prosecutor said the panel's full documentation and witness transcripts should have benefited the special counsel.
"The committee report gives special counsel not only the benefit of knowing what a particular witness would say, but also telling him what other witnesses won't say," Michael Moore, a former US attorney in Georgia, told the Guardian. “Such Intel gives it the ability to build a stronger case with fewer surprises. More information is never a bad thing for a good lawyer."
On the wider legal challenges facing the DoJ, the former prosecutor said the panel's work should encourage the department to work diligently to investigate and prosecute Trump and others the panel refers to for prosecution.
"Usually, the department quietly exercises a great deal of discretion by hiding behind the spell that they will pursue cases whenever the facts and law support it," Richman said. “The public usually has to take their word for it, not having the detailed knowledge to make their own judgments.
“Here, while it may be to disagree with the committee's handling of law and evidence, there will be considerable pressure on the DoJ to bring a case to a determination or figure out how to explain why not.”