The House Select Committee’s just-issued full report is an extraordinary compilation of evidence of Jan. 6 criminality aimed at overturning our republic.
It also represents something more: a testament to the resilience of our system and its ability — thanks to built-in redundant powers within multiple branches — to act when the rule of law is threatened.
The bipartisan committee has flipped the script on Special Prosecutor Leon Jaworski and his grand jury. In March 1974, they wrote a report known as the “roadmap” to impeaching then-President Richard Nixon.
The roadmap set forth point-by-point evidentiary support for impeachment. Within months, Nixon resigned.
Now in 2022, the select committee has sent a roadmap for prosecution of another one-time president, Donald Trump, in the opposite direction — from Congress to federal prosecutors. The committee’s report comes with its own marshaling of voluminous evidence — from its exhaustive investigation — in support of the charges the committee wants filed against Trump: obstruction of an official proceeding, conspiracy to defraud the United States, false statements to the government, and insurrection.
Criminal justice does not usually proceed in this order. The Justice Department typically leads in investigating and pursuing prosecutions — it is the only arm of the federal government with the power to indict.
Prosecutors also have grand juries with powers that Congress lacks to compel testimony. Witness this example from Dec. 2: Through court order enforcing a grand jury subpoena, Special Counsel Jack Smith successfully overcame former Trump White House Counsel Pat Cipillone’s claims of executive privilege, forcing him to testify fully.
The Jan. 6 committee was unable to pierce Cipillone’s executive privilege claims. Yet it has plainly led the way, through remarkable public hearings and now this referral and comprehensive report.
The committee has shown the nation — with unmistakable clarity — why and how the lead perpetrators of the attempted coup to destroy our democracy should and can be held to account. Its evidence-based work will stand in sharp historical contrast to the incoming House majority’s promised Benghazi-style theatrics attacking the DOJ and Republicans’ political opponents and tearing down the rule of law.
Some observers have seen the Jan. 6 committee’s leadership as grounds for criticizing the DOJ’s failure to act more quickly. Indeed, we have urged that prosecutors could usefully move faster — especially when it seemed that the primary perpetrator might not be held to account.
But Justice Department leadership often involves fine balancing. Sacred to evenhanded justice is the need for the DOJ to steer clear of even an appearance of political influence. If the public justly perceives the DOJ as politicized — as former prosecutors saw former Attorney General William Barr’s DOJ — it loses the people’s trust and the ability to enforce the law effectively.
It is thus understandable that in reaction to his predecessor, Merrick Garland would start with caution about focusing on Trump personally. Garland’s decision last month to appoint a special counsel after Trump declared his 2024 candidacy illustrates the attorney general’s protection of that norm.
Still, we should not overlook the effective actions Garland has taken around Jan. 6. He quickly directed prosecutors to bring to justice every participant in that day’s Capitol invasion against whom there was proof beyond a reasonable doubt of guilt. More than 960 have been charged, more than 450 convicted.
They include two Oath Keepers convicted of seditious conspiracy, a crime not successfully prosecuted in a generation. Other members of that group and the far right Proud Boys are currently on trial for the same crime.
By any standard, it is an impressive body of work.
As to focusing on the man atop the apparent Jan. 6 conspiracy, regardless of whether one thinks that Garland waited too long, no one should lose sight of this tangible proof of the resilience of our government system: Congress, via Speaker Nancy Pelosi’s (D-Calif.) appointment of an extraordinarily capable bipartisan committee, stepped in and made it a priority to ensure that America had the evidence of Trump’s attempted coup.
The committee quickly concentrated on his role as the central actor on Jan. 6. With the principle that no one is above the law at risk, constitutional checks-and-balances provided a back-up to the executive branch. Congress took the lead marshaling the facts of Trump’s pivotal role and in presenting them to America.
Now, in Garland’s November action appointing Smith, we plainly have a prosecutor moving aggressively toward a moment of truth when wrong doers at the top will be brought to justice. We can thank the committee, and Congress’s place in our constitution, for helping ensure that the rule of law endures.
Donald Ayer served as United States attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H. W. Bush.
Dennis Aftergut is a former federal prosecutor and former chief assistant city attorney in San Francisco, currently of counsel to Lawyers Defending American Democracy.