WASHINGTON — The Biden administration says it is in critical need of more money to bring the Jan. 6 rioters to justice. But it’s not clear Congress will grant that request in a major funding bill planned for December. And if it fails to do so before the new year, a potential Republican-led House could imperil the resources they need.
With just weeks of work left in this Congress, the future of the sprawling federal criminal investigation into the thousands of rioters who stormed the building in support of then-President Donald Trump rests, in part, in the hands of congressional appropriators who craft funding bills to keep the government running.
“There are lots of requests,” House Appropriations Chair Rosa DeLauro, D-Conn., said when asked about the Department of Justice's request for the extra Jan. 6 funding in the year-end bill. “We’re taking a look at all of them and seeing what makes it and seeing what doesn’t make it.”
The Justice Department has called Jan. 6 “the most wide-ranging investigation” in its history, with more than 870 arrests so far. For 21 months, the investigation, led by the U.S. Attorney’s Office for the District of Columbia, has largely been propped up with help from 93 federal prosecutors' offices from across the country who are volunteering personnel.
But the work is far from over and the department needs more resources to move full-speed ahead, more than a dozen sources close to the investigation told NBC News in July. As one official put it, "We don’t have the manpower."
Online sleuths had identified hundreds of additional Jan. 6 rioters who have not yet been arrested; one of the sleuths who is closely tracking the Justice Department’s caseload noted that the number of outstanding cases is going down, with sentences now outpacing new arrests, which have slowed to roughly four per week since the beginning of 2022. That falls far below the number of arrests made in 2021, which have kept the court docket in federal court in D.C. loaded up as cases work their way through the process.
While a new crop of assistant U.S. attorneys filling temporary roles could help pick up the pace of arrests in the coming months, the long-term trajectory of the criminal probe depends in part on the fiscal year 2023 budget, which Congress is planning to pass in December, around the time the Jan. 6 committee is expected to issue its final report.
The Justice Department has told Congress that more than $34 million in funding is "critically needed" to fund the investigation.
“The cases are unprecedented in scale and is expected to be among the most complex investigations prosecuted by the Department of Justice,” the Justice Department wrote to the legislative branch.
Failure to get extra funds, the department said, will have a “detrimental impact” on U.S. Attorney's Offices across the country, which would “need to incur a budget reduction to fund these prosecutions.” That, in turn, could keep offices from filling vacancies and prosecuting other important cases in their home jurisdictions, the Justice Department told Congress.
Congress has until Dec. 16 to strike a funding agreement and negotiators plan to return after the Nov. 8 election to try to hash out a full-year deal. Before they broke for recess, lawmakers involved in the talks told NBC News that the fate of the Justice request was still unsettled.
While the department has conveyed its needs to the Hill, senior lawmakers said they were not aware that the future of the Jan. 6 investigation could depend on the next budget round.
“There are a lot of items that are up in the air at this point. We are negotiating at the highest levels, and I don’t actually know where that provision might be," said Rep. Marcy Kaptur of Ohio, the No. 2 Democrat on the Appropriations Committee.
Asked about Justice needing more resources for the investigation, Kaptur said: "They have to let us know. As an appropriator — they have to let us know if there are insufficient funds. But I think those who disgraced our country who perpetrated violence, desecrated these buildings — they should pay the price for that."
“I haven’t seen that request at all,” said Sen. Susan Collins, R-Maine, another appropriator, who said that the Justice request is overseen by a different subcommittee than the one she leads. “So I was unaware of it till you just mentioned that.”
DOJ's full request was included in a funding bill that cleared the Democratic-led House Appropriations Committee over the summer. But converting that into a bipartisan bill that can pass both chambers is a taller order.
Some Republicans are open to it. Rep. Tom Cole of Oklahoma, a senior GOP appropriator who objected to certifying the election results after the Jan. 6 attack, said he’s open to authorizing more money for the investigation.
“Those people ought to be prosecuted to the full extent of the law. I don’t have any problem giving the Justice Department the resources it needs to do that,” he said. “I don’t have any problem spending extra money to make sure that anybody that broke into this building is brought to justice.”
Appropriations bills are subject to a Senate filibuster, meaning any funding bill taken up this year will require a minimum of 10 Republican votes to pass the chamber.
The prospects of authorizing new Jan. 6 funding could diminish next year if Republicans take control of the House and elevate Rep. Kevin McCarthy of California, a staunch Trump ally, to speaker. The likely Judiciary Committee chair overseeing the Justice Department would be Rep. Jim Jordan of Ohio, an outspoken Trump ally who has echoed his false election claims, and criticized the Jan. 6 committee, the DOJ, and the FBI's focus on domestic terrorism.
Many within the Republican caucus have criticized the Justice Department probe, questioning why a politically motivated attack on the legislative branch of the U.S. government is getting more federal attention than local riots that focused mostly on nonfederal targets in the summer of 2020. Rep. Louie Gohmert, R-Texas, even gave a Jan. 6 defendant who was sentenced to 60 days in federal prison a flag that flew over the U.S. Capitol, dubbing her a "national treasure."
But top appropriators are highly motivated to strike a full-year funding deal in the lame-duck session, including Senate Appropriations Chair Patrick Leahy, D-Vt., and Vice Chair Richard Shelby, R-Ala., both of whom are retiring and want to go out with an achievement.
Asked if a new funding deal could potentially get punted into 2023, DeLauro said: “No way.”
Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco have both said Jan. 6 prosecutions will proceed even if it means U.S. Attorneys' offices have to take a budget hit.
“Of course, we’d like more resources, and if Congress wants to give that to us, that would be very nice,” Garland told NBC News in July. “But we have people — prosecutors and agents — from all over the country working on this matter, and I have every confidence in their ability, their professionalism, their dedication to this task.”
But that may come at the expense of other vital law enforcement functions. As Monaco told reporters this year, the Jan. 6 investigation “draws on resources from across the U.S. Attorney’s Offices — those same resources that are needed to fight violent crime, those same resources that are needed to investigate corporate crime across the country, those same resources that are going to help us enforce our civil rights laws.”