The January 6 Show and its Spinoffs
The January Committee hearings have been characterized, mostly for better, occasionally for worse, as a well-produced TV show, broadcast in tolerable two-hour increments, and holding the audience’s attention with attractive graphics, star-making performances by participants known (Bill Barr) and unknown (Cassidy Hutchinson, Rusty Bowers, and the weird art backdrop, f-bomb guy Eric Herschmann), and cliff-hangers at the end of each hearing. It even mimicked popular streaming shows like Stranger Things, Ozark, and Better Call Saul, taking a several month hiatus before preparing to broadcast the final episodes of this season in the fall.
After last night’s Wyoming primary, we know the biggest star of the proceedings, Liz Cheney, won’t be part of the cast if the hearings are extended for a second season. Most likely they won’t be anyway, when Republicans take over the House in 2023, as expected.1 So this is as good a time as any to consider what the hearings have accomplished.
It’s pretty clear that the hearings drew bigger audiences and more media and social media attention than anyone expected. From a political standpoint, if the objective was “to ensure that the former president never again gets anywhere near the Oval Office,” they have not really shaken Trump’s 900-pound gorilla status in the Republican Party, although the number of party members who would like a different standard bearer in 2024 may have ticked up modestly.
But what everybody’s really watching is whether the conduct depicted at the hearing will lead to criminal consequences. For many months, it seemed like DOJ wasn’t even aware of, much less acting on, witnesses and evidence that the Committee was surfacing, despite DOJ’s superior information-gathering capabilities. But by now it’s pretty evident that DOJ has broadened its investigation beyond the capitol attackers and fake electors that have been known targets for some time now. It has seized electronic devices and other records from John Eastman, Jeffrey Clark, and Pennsylvania Congressman Scott Perry, taken grand jury testimony from Pence aides Greg Jacob and Marc Short, served subpoenas on former White House counsel Pat Cipollone, Patrick Philbin, and Eric Herschmann, and collected documents from Mark Meadows and other staffers. Mark Meadows’ aide Cassidy Hutchinson (the star committee witness) and short-term DOJ lawyer Ken Klukowski2 are cooperating with DOJ’s investigation.
DOJ would surely dispute that it picked up the pace of its investigation because the Committee’s presentations amped up public pressure. But regardless of whether the Committee has had any effect on DOJ’s work, it seems highly likely that the hearings have made the possibility of prosecuting Trump more palatable to the American public. The prevailing intuitions when the hearings started that prosecuting a defeated President of the opposite party would set a bad precedent or further divide the country may be receding relative to the view that a former President is not immune from the law, and that future Presidents—including possibly a future President Trump—must be deterred from trying to do what Trump did.3 In television terms, the “show” that the American public has watched to date may have conditioned it to expect criminal investigations and prosecutions as the natural culmination of the series—indeed, they may have a hard time seeing what the point of the proceedings were if that doesn’t happen.
In a similar vein, Merrick Garland may have arranged his interview last month with Lester Holt precisely for the purpose of preparing the American public for the possibility that Trump could be prosecuted. What other purpose was there for that appearance? Of course, Garland expressed that possibility in vague, institution-speak—we’ll go where the facts take us; no one is above the law—but those are things he’s already said. He didn’t need to go on national air to say them over again, just as DOJ’s investigation ramped up. Last week’s search of Mar-A-Lago—while technically for classified documents that Trump failed to turn over, not January 6 specific material—is further evidence that DOJ is not going to treat possible law-breaking by Trump or close allies with kid gloves.4
The committee has given the American public every reason to believe Trump should be prosecuted. Merrick Garland has given them no reason to expect otherwise.
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Some other notes as we wait for the hearings to start back up after Labor Day:
The Committee plans to publish a report in August about the National Guard’s activities on January 6—and it should. At the July 21 hearing, the Committee documented what Trump did during the 187 minutes between the start of the attack on the Capitol and his video-taped statement urging the attackers to go home at 4:17 (rile up rioters by tweeting that Mike Pence let them down), and what he didn’t do (tell the rioters to stop assaulting law enforcement or order the National Guard to make them stop). But Trump was not the only member of the government at the office that day. We should also understand how the day transpired from the perspective of the military and law enforcement officials who waited several hours to deploy the assets at their disposal, perhaps because they were waiting on direction to do so. During those 187 minutes that Trump was not consulting with these officials, what were they doing? Were they waiting for Trump to issue orders? Did they need to? What were they doing to get those orders? Did they finally deploy the National Guard on orders from Vice President, operating outside the constitutional chain of command, that finally caused the National Guard to be deployed? Or did the Secretary of Defense or the head of the National Guard make that decision on their own—if so, why not earlier? Adding the perspective of the government leaders who were waiting on Trump’s leadership, and perhaps communicating that in desperate terms, will only bolster the record that he did not provide it.
I’d also like to hear more about the December 21, 2020 meeting attended by Trump, Giuliani, Meadows, Mike Pence, and eleven Republican members of Congress, six of whom purportedly sought a pardon. Those members of Congress thought they had done something that could get them in enough trouble to need that pardon—what was it? Surely there were Trump, Meadows, and Pence staffers in attendance who could fill us in about what was discussed at the meeting. Oh, also Mike Pence.
The answers to these questions may reside in the transcripts and videotapes of interviews and depositions already conducted by the Committee. It is long past time for the Committee to release those transcripts to the public—especially for those witnesses who have had segments and snippets played or read at the hearings. The Committee made a reasonable choice to present the evidence it gathered 60-Minutes style, rather than in days long hearings, but a consequence was that the public may believe they heard only “the best stuff.” It’s time the public and media received access to the complete record. Releasing the transcripts will also serve the Committee’s goal of keeping the public’s attention on the investigation even while there is a break in pubic hearings.
This eventuality has gone from a mortal lock to merely very likely in the past few weeks as gas prices have dropped, inflation stabilized, job reports beat expectations, abortion rights proved a powerful voting issue, and Democrats have been more competitive in GOP-leaning special elections than predicted by the fundamentals. 538.com gives Democrats a 22% chance of holding the House, up from 12% two months ago.
Ken who? Klukowski was, until December 14, a private lawyer collaborating with John Eastman, the architect of the fake elector and “Mike Pence gets to unilaterally pick the President” schemes. On December 15, the day after the real and fake electors voted, Klukowski joined the Justice Department, where he reported to Jeffrey Clark, helping Clark draft the letter to Georgia state officials falsely stating that DOJ had uncovered fraud in Georgia that should cause them to certify different electoral college votes than those cast on December 14. The circumstances are at least suggestive of private actors inserting a mole inside the Justice Department to carry out their objectives .
In deciding whether to prosecute, DOJ is hopefully considering the importance of deterring anyone from trying to overturn fair elections, not just future Presidents. Republican operatives and activists are encouraging partisans who believe, falsely, that the 2020 election was stolen, to get involved in all stages of the electoral process, whether as elected officials, election workers, or volunteers. Most of them will never go beyond being vigilant watchdogs over the voting process, but to the extent that they are tempted to break the law to achieve election outcomes, prosecuting people who tried to overturn the 2020 election (assuming the facts support doing so) would be a timely signal that recasting this public service function into an opportunity to pursue partisan objectives is a risky bet.
Regarding the Mar-A-Lago search, Republicans are ironically pushing the narrative arc that the intrusive action will only be justified if it results in an indictment. That bluff may be called.