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What could be next after the Jan. 6 hearings

MICHEL MARTIN, HOST:

It was yet another disturbing and illuminating week of hearings by the House committee investigating the attempted coup on January 6 as the committee detailed what former president did or, more accurately, did not do to stop the mob he had summoned to the U.S. Capitol. Here's vice chair Liz Cheney questioning former White House counsel Pat Cipollone about the president's response to the violence at the Capitol.

(SOUNDBITE OF ARCHIVED RECORDING)

LIZ CHENEY: So are you aware of any phone call by the president of the United States to the secretary of defense that day?

PAT CIPOLLONE: Not that I'm aware of, no.

CHENEY: Are you aware of any phone call by the president of United States to the attorney general of the United States that day?

CIPOLLONE: No.

CHENEY: Are you aware of any phone call by the president of the United States to the secretary of Homeland Security that day?

CIPOLLONE: I am not aware of that, no.

MARTIN: For many of those watching the hearings, the evidence of the former president's culpability seems obvious. But the committee itself doesn't have the ability to indict or try anyone. That power rests with the Department of Justice. And although some 800 people have been charged with crimes related to January 6, the former president and his top advisers in the White House at the time have not faced any charges. And that's increasingly frustrating to activists, officials and citizens who say the Justice Department, led by Attorney General Merrick Garland, is just not moving fast enough to deliver accountability for the assault on the nation's constitutional order. But as you might imagine, others say that's just not fair or realistic given an investigation of this magnitude. So who's right? We're going to start today by laying out those two perspectives with two people who have had this debate in the pages of Lawfare. Ben Wittes is the editor-in-chief of Lawfare. He wrote a piece this week defending the Justice Department's approach. Mr. Wittes, welcome. Thanks for joining us.

BEN WITTES: Thanks for having me.

MARTIN: And Quinta Jurecic is a senior editor at Lawfare. She co-wrote a piece this week questioning whether the Justice Department's efforts are meeting the moment. Quinta, welcome to you as well.

QUINTA JURECIC: Thanks for having me.

MARTIN: So, Mr. Wittes, would you just start by reminding us what we know about the Department of Justice's investigation so far?

WITTES: Well, we know that they have indicted people who merely trespassed on the Capitol grounds to very violent felons who assaulted police officers, destroyed property. And there are two major indictments, each involving a bunch of different people that involve what the law calls seditious conspiracy. That is the attempt violently to prevent the government from doing its job. The investigation has crept up the ladder of both seriousness and is - now involves people in the political echelon quite close to the former president.

MARTIN: And you feel that their approach is fair, it's reasoned, that it's appropriate to the task.

WITTES: Well, so if you had asked in - on January 7, 2021, what would a super aggressive Justice Department investigation look like, I would have said something like, well, the signs of an aggressive investigation 18 months out would be that you would have a large number of indictments, that you would have them not be merely people who are trespassers and rioters, but that you would have a series of more serious allegations as well, not merely on the violent side but also on the, you know, attempt to prevent the peaceful transition of power side and that you would be seeing the investigators knock on the doors of people in the political echelon. And that's more or less what we've seen. We are only starting to see the people in the political echelon have search warrants executed against them. Have they frog marched Donald Trump out of Bedminster yet? No, but I wouldn't have expected that to happen. Investigations take a long time, and complex investigations take a really long time.

MARTIN: So, Ms. Jurecic, your argument isn't that the Justice Department isn't doing anything, and you acknowledged in your piece that the public can't possibly know all that they are doing, but you still have concerns that they're not meeting the moment. Why do you say that?

JURECIC: That's right. So in this piece, which I co-wrote with Lawfare executive editor Natalie Orpett, essentially what we're arguing is that we completely agree with them that there are signs that the Justice Department is moving aggressively in prosecuting the January 6 rioters. What we're concerned by is some reporting that the department has only recently sort of turned its attention to the criminal culpability of Trump himself. Listeners may recall there was some reporting by The New York Times after the testimony of White House aide Cassidy Hutchinson before the January 6 committee that this - and I'm quoting from the Times here - "jolted top Justice Department officials into discussing the topic of Mr. Trump more directly," sort of indicating that perhaps the department had developed its investigative structure by looking more at this kind of bottom-up issue from, you know, prosecuting the rioters in the Capitol, seeing where that takes them, rather than focusing aggressively on the potential criminal culpability of Trump himself. And I think that's particularly striking because certainly the January 6 committee has made a great deal more information available in recent weeks to the public.

I think it's striking as well that apparently some of that information wasn't information the Justice Department itself was previously aware of. But it's also true that, you know, if the department had wanted to investigate Trump personally, there was evidence that could have been, you know, grounds for an investigation under Justice Department policy early on. That famous call by Donald Trump to Georgia Secretary of State Brad Raffensperger demanding that Raffensperger find 11,000 votes to win Trump Georgia, that was reported on January 3. So while the department certainly - you know, it might make sense that they would be turning their attention to Trump given the new information unveiled by the committee now, it's also the case that I don't think they necessarily needed to structure the investigation in such a way that they would only be turning to Trump now.

MARTIN: So - but what is your bigger concern? I think your bigger concern is what - that this - that the by-the-book approach just is not sufficient for something of this gravity. Is that your point, that the public needs to be assured constitutional order is being taken seriously? What is it exactly that you think is missing from the department's approach - a sense of urgency?

JURECIC: It's a little bit of a hard question because, as Ben says, you know, we don't know everything that's going on. And it may be that the department is taking this extraordinarily seriously, but we're kind of, you know, standing on the outside, looking in through a keyhole, trying to figure out what's happening. I do think it is fair to say that, yes, the department has not communicated its work to the public with an adequate sense of urgency or care. And that, you know, in these circumstances, it makes perfect sense that the department would want to do things, as you say, by the book, you know, by the rules. But at the same time, I think it's also reasonable to take into account that this - that January 6 was an event of extraordinary danger for our democracy, that the Justice Department should take that into consideration and that it should also take that into consideration when thinking about how to communicate what it's doing to the American people, that people are concerned, that it's reasonable for them to ask questions. And I think it's also reasonable to ask that the department start speaking up a little more to at least give us a sense of what it's thinking, even if it can't, you know, give us a full picture into the scope of the investigation, so that people are reassured that it is taking things seriously and meeting the moment.

MARTIN: Mr. Wittes, what about that? I mean, Ms. Jurecic points out in her piece that Americans overwhelmingly believe that adherence to preserving norms, protect democracy, that that's important. A majority, according to the poll she cites, believe that U.S. democracy is in crisis and at risk of failing and that a significant majority believe that America's system of government is in need of changes. Those are really big questions. And if that's the case, I mean, what about her point that even if it's entirely appropriate that the department follow sort of recognized, sort of investigative norms, not talking about their investigation and so forth, that that's not sufficient to assure Americans that democracy isn't failing? What do you say to that?

WITTES: Well, I certainly agree that, you know, the addressing of those concerns on the part of the public is a critical factor in this investigation. And, you know, if the investigation cannot show that the justice system can perform in the highest stakes cases, you know, and when democracy itself is on the line, people are entitled to conclude from that, that it can't. And that is a very great danger. That said, the way to address that problem is not, in my judgment, to act precipitously or to bring cases in situations in which you are not maximizing your chance of winning. And so, look, you know, people remember Watergate as an incident. Watergate - the Watergate Special Prosecution Force did not wrap up its work for five years after the Watergate break-in. And so people have a kind of cable TV, Twitter pundit lawyer expectation of how long these things take. This is a many thousand witness and potential defendants case. It's going to take a long time. And I think - you know, I agree very much that - with Quinta and Natalie that the investigation has to ultimately satisfy people's sense that justice is done and is possible in these circumstances. But I don't think the answer to that is to artificially speed up cases that are just inherently going to take a long time.

MARTIN: That's Quinta Jurecic. She's a senior editor at Lawfare. Ben Wittes is the editor-in-chief of Lawfare. You can read their debate about this in the pages of Lawfare. Thank you both so much for joining us.

WITTES: Thanks for having us.

JURECIC: Thank you. Transcript provided by NPR, Copyright NPR.