The House committee investigating the Jan. 6 attack on the Capitol is scrutinizing one particular phrase from House Minority Leader Kevin McCarthy’s (R-Calif.) leaked calls with other top Republicans expressing concern that former President Trump would seek a pardon.
The taped recording with McCarthy, published by The New York Times, not only relays McCarthy’s assertion that Trump bore responsibility for the attack, but could also indicate his concern that some actions the former president took leading up to that day may be criminal.
“Now, this is one personal fear I have. I do not want to get into any conversation about [former Vice President Mike] Pence pardoning,” McCarthy says in the Jan. 10 recording as part of a broader conversation about Trump potentially resigning after the riot.
Experts say the committee may want to zero in on that exchange, as the audio shows Republicans at the highest level may have been worried about the legality of Trump’s actions leading up to Jan. 6.
“You would not want to be the middleman in a conversation about Trump being pardoned by Pence because [McCarthy] would be concerned about somebody saying he obstructed justice in some way,” said Jeff Robbins, a former U.S. attorney who also served as chief counsel for the Senate’s Permanent Subcommittee on Investigations.
“There’s no need to have a personal fear about being involved in a pardon conversation unless there’s been some suggestion of a conversation about a pardon. And there’s no need to have a discussion about a pardon unless people within McCarthy’s sphere are having serious discussions about Trump’s culpability in a crime,” he added.
“And there’s no need for a pardon if all you’ve done is something that is immoral or unethical or optically bad. The need for a pardon exists when there is criminal culpability.”
The conversation itself, Robbins said, suggests such questions were likely a topic of conversation among McCarthy and other high-ranking Republicans between Jan. 6 and Jan. 10.
The select committee has asked McCarthy to voluntarily speak with the committee’s investigators — an invitation he rebuffed.
Among the things the panel outlined to the minority leader were a desire to speak about his conversations with Trump during and after the attack, as well as prior reports that McCarthy said the former president admitted to being somewhat responsible for the attack — a line receiving renewed attention after being relayed in audio recordings of McCarthy.
“I think it is very important that Kevin McCarthy has evidence the former president acknowledged bearing some responsibility for that attack on the Capitol. This is an admission of guilt by the former president,” Rep. Adam Schiff (D-Calif.) told CBS News.
“The reports of what the president said, that he understood that he bore responsibility, that’s consciousness of his guilt. And it is an important element of piecing together all of the facts relative to Jan. 6,” Rep. Zoe Lofgren (D-Calif.), another committee member, told the outlet.
The criminality of Trump’s actions has been of keen interest to the committee, which recently argued in a civil case that one of his attorneys could not claim attorney-client privilege to shield documents, as such an exception is not valid when legal advice was given in furtherance of a crime. A judge largely agreed with the committee and ordered John Eastman to turn over new documents.
But Robbins said the discussion around a pardon could be more illuminating when it comes to guilt.
“Saying that he accepted some responsibility is too vague, it could mean a lot of different things,” he said.
“The conclusion that the former president may have actually committed a federal crime comes into play in reference to his personal fear in getting involved in a conversation about a pardon,” he added. “Letting down the American people, none of that implicates any requirement for a pardon. Crimes require pardons.”
But Michael Stern, who previously served as special counsel to the House Intelligence Committee, said the pardon conversation may not carry as much water with Trump, who frequently asserted well before Jan. 6 that he may even be able to pardon himself and used the legal tool heavily while in office.
And while McCarthy may have wanted to steer clear of any conversation that involved a quid pro quo, the discussion itself doesn’t indicate guilt related to Jan. 6, Stern said.
“There are many things that [Trump’s] being investigated for which don’t have anything to do with Jan. 6 and which probably are more legally dangerous for him. So [I wouldn’t] draw the conclusion that this was specifically about potential legal jeopardy related to Jan. 6, as opposed to just Trump would recognize the fact that if he left the presidency, with respect to Jan. 6 or lots of other things, he’s going to face a lot of investigations,” and may seek a pardon as a “sweetener” for leaving office, Stern said.
But getting those details would be difficult, he added.
“As far as if this is something that the committee is interested in, the problem that they have is the problem they have with all of these members, which is they really don’t have a practical way of forcing them to testify,” Stern said.
He added that while a subpoena is “theoretically available … I just don’t think politically or institutionally it’s going to be something they’re willing to use.”
There is one member of the committee who may have some insight: Vice Chairwoman Liz Cheney (Wyo.), one of the panel’s two Republicans, who can be heard on the call with McCarthy.
“What’s most notable about it is that it sounds as though he believes that nobody else on the call needs to have a further explanation of it. That is to say, it sounds as if he knows that the question of a potential pardon by Pence has come up in some form. He doesn’t explain what he means, he doesn’t tell people the reason I’m raising this is X, Y, or Z,” Robbins said. “It sounds as though people or their staffs have already been discussing the question of whether or not, for instance, his resignation should be linked in any way to a potential pardon.”
While the call could hold value for the committee, it’s less clear it will be of any use to the Department of Justice.
“I don’t think the McCarthy tapes shed any light on a criminal investigation. I think it is harmful to him politically, in that it shows that he appreciated the gravity of Trump’s conduct at one time,” said Barbara McQuade, a former U.S. attorney.
It also might be of more political than investigative value to the committee, which is gearing up for hearings as early as May.
“They need to make a decision about when to just sort of move forward with the information that they have, because they can’t just keep getting more information forever,” said Molly Reynolds, a senior fellow in governance studies at the Brookings Institution who has focused on the committee’s work.
The committee has been debating whether its final report on the matter should include a recommendation to the Department of Justice to pursue charges against Trump — a referral the department may not chose to take.
But Reynolds said the bigger picture for the committee is making a compelling case for the public.
“The select committee has a different job than the Department of Justice. The select committee’s job is to hold people accountable in a public way for behavior — some of which may be criminal and some of which may not be —and to tell the story in a way that gets its arms around as much of what happened as possible,” she said.
“That’s hard, but that’s their job.”