When the Jan. 6 committee wrapped its hearing Tuesday, Chairman Bennie Thompson told reporters the probe has now started negotiations with the Justice Department over access to records that the panel has collected during its investigation into former President Donald Trump’s attempt to overturn the 2020 election and the attack at the U.S. Capitol that followed.
To CNN, Thompson said: “We have started producing information about who we have interviewed and that kind of thing pursuant to what they have requested. We are in the process of negotiating how that information will be viewed, whether it’s an in-camera review or what.”
The Justice Department has been after the committee’s transcripts since April, when Assistant Attorney General Kenneth Polite and the U.S. attorney for Washington, D.C., Matthew Graves, first made the request to the committee’s chief investigator, Tim Heaphy.
The committee members have been firm about keeping lines clear between themselves and the Department of Justice. In May when Polite’s request was first reported, Thompson was emphatic that the committee would not merely hand over total access to its documents but would parse out how certain items could be reviewed. The New York Times reported then that sources familiar with the matter believed Thompson’s withholding was a bargaining chip and that investigators wanted the Department of Justice to “turn over evidence in exchange for the transcripts.”
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A few updates per CNN today:
The committee’s chairman Bennie Thompson said Wednesday afternoon that the Department of Justice is specifically—and “only”—interested in witness testimony tied to Trump’s bunk electors.
Many of those electors are facing subpoenas today from the department over their roles in a bid to pass off fake elector certificates as real in key battleground states where Trump lost to now-President Joe Biden during the 2020 election.
As for the witness tampering issue raised by committee vicechair Liz Cheney on Tuesday: Rep. Adam Schiff, a fellow member of the committee, told CNN that the panel couldn’t say whether Trump legally tampered with a witness by attempting to contact them if they didn’t pick up the call. This legal area is being explored now by the panel. Regardless, there have been multiple other attempts to potentially influence witness testimony, Schiff noted.
The attitude now about record sharing appears to be mellowing as Thompson said Tuesday that talks were “moving forward” with the department.
“We will probably do something in the month of July but it probably will not be before we complete the hearings. We’ll establish a procedure to look at some of the materials,” he said.
The committee will retain total ownership of its records, he stressed.
“Now if they want to come and have an opportunity to sit and review them and that kind of thing, I think we can work that out,” he said.
The grip over the records is not irrational; handing over hard-fought investigative source material to anyone outside of a probe is generally not recommended because it leaves open the chance that those records could be misused or lost. Moreover, the Department of Justice is currently prosecuting hundreds of people tied to Jan. 6, including key figures integral to the committee’s investigation like Elmer Rhodes, leader of the extremist Oath Keepers group, and Henry “Enrique” Tarrio, leader of the neofascist Proud Boys.
Access is one thing and possession is another. If the committee does hand over records to the Department of Justice, the department could turn over its findings to Jan. 6 defendants requesting evidence to build their own cases.
Astutely pointed out in an op-ed for Politico this June, former federal prosecutor Ankush Khardori noted:
Even with so-called “protective orders” in place that nominally prevent defendants from widely disseminating discovery from the government, there is no realistic way to ensure that defendants or their lawyers will not share this material with people who are not supposed to have access to it. That, in turn, might allow people to coordinate their stories, and it could disincentivize other people from coming forward to speak to the committee.
This seems even more prescient now in light of information divulged by the committee during its hearing on Tuesday, which explored ties between Trump and extremists who attacked during the Joint Session.
“After our last hearing, President Trump tried to call a witness in our investigation. A witness you have not yet seen in these hearings. That person declined to answer or respond to President Trump’s call and instead alerted their lawyer to the call. Their lawyer alerted us. And this committee has supplied that information to the Department of Justice,” Committee Vice Chair Liz Cheney said.
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The Wyoming Republican has previously disclosed concerns over witness tampering. During its sixth hearing, when Cassidy Hutchinson, the former aide to Trump White House Chief of Staff Mark Meadows testified, Cheney closed out that hearing with a warning over possible witness tampering.
“We will take any effort to influence witness testimony very seriously,” she said. The committee then provided examples of answers investigators on the panel received when they would ask witnesses if Trump or anyone related to Trump tried contacting them about their testimony.
“What they said to me, as long as I continue to be a team player, they know that I’m on the team, I’m doing the right thing, I’m protecting who I need to protect, you know, I’ll continue to stay in good graces in Trump world,” one of the examples stated.
In another, the witness was told that Trump wanted to “let you know that he’s thinking about you.”
“He knows you’re loyal and you’re going to do the right thing when you go in for your deposition,” the person said.
Punchbowl News first reported last month that one of those language examples was sent to Hutchinson. It is unclear which was sent to her. Hutchinson’s testimony was rife with bombshells, and her testimony exposed key details about the events surrounding the insurrection including, most critically, that Trump knew the mob was armed on Jan. 6, encouraged them to skip past security points, and then urged them to march on the Capitol.
During the hearing Tuesday, White House records and emails obtained by the committee showed how Trump and rally organizers wanted to make Trump’s call to march to the Capitol seem random.
A draft tweet shared with the committee by the National Archives showed Trump toying with the idea of making the announcement. The draft stated:
“I will be making a Big Speech at 10AM on January 6th at the Ellipse (South of the White House). Please arrive early, massive crowds expected. March to the Capitol after. Stop the Steal!!”
It never went out.
In emails between rally organizer Kylie Kremer and Trump campaign adviser Katrina Pierson, Pierson expressly said Trump would call on the crowd at the Ellipse to march on the Capitol.
“POTUS is going to have us march there/the Capitol. It cannot get out about the second stage because people will try and set up another and sabotage it. It can also not get out about the march because I will be in trouble with the national park service and all the agencies but POTUS is going to just call for it ‘unexpectedly,” Kremer wrote.
A spokesperson for the Department of Justice did not immediately respond to a request for comment Wednesday.