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The Jan. 6 committee’s response to DOJ’s request for transcripts is a big blunder

It was a blatant turf-protecting reaction that could ultimately undermine the criminal prosecution of those who instigated the Capitol riot.

The Justice Department sent a letter to the House committee investigating the Jan. 6 attack on the U.S. Capitol, requesting transcripts of closed-door witness interviews the committee has conducted be shared with the department. The letter, sent on April 20, was first reported Tuesday by The New York Times.

Rather than readily agree with the Justice Department’s request, committee Chairman Bennie Thompson, D-Miss., rejected it as “premature” following the news report.  

Even if the department hadn’t sent its request, sharing all the transcripts this year should’ve been at the forefront of the minds of everyone on the Jan. 6 committee.

That’s a blunder of epic proportions.

The only prudent answer is to promptly deliver to the Justice Department not only every transcript of the more than 1,000 interviews it has conducted but also all evidence in the committee’s possession.

In a blatant turf-protecting response, Thompson said, “We told them that as a committee, the product was ours, and we’re not giving anyone access to the work product.” He also said department officials could view the documents in person.

This reaction is a critical miscalculation. For two reasons, anything short of full cooperation could undermine the criminal prosecution of those who instigated the Capitol riot. 

First, after the November midterms, it’s likely that the Republicans will regain control of the House, and, as members of the GOP have threatened to do if that happens, the Jan. 6 investigation could be shut down. The House committee’s nonpublic witness files could then be hidden in a government warehouse. Prosecutors need time to marshal evidence sufficient to prove guilt beyond a reasonable doubt before anyone conceivably could be indicted. These interview transcripts would provide federal prosecutors with a running start in that effort.

Second, a little-recognized legal pitfall could torpedo any criminal prosecution if the committee’s delivery of evidence to the Justice Department is incomplete. Two categories of documents are implicated: all statements “in the possession of the United States“ made by prosecution trial witnesses and exculpatory evidence held by federal prosecutors.

The Jencks Act, 18 U.S. Code 3500, mandates that U.S. prosecutors provide a criminal defendant with all prior transcribed statements made by any prosecution witness about the topics that witness testified about during direct examination. If prosecutors fail to deliver such statements, the consequences can be severe. A trial judge can strike a witness’ testimony or grant a mistrial.

In addition, due process requires prosecutors to give a criminal defendant any exculpatory evidence in their possession. We can’t ignore the possibility that while much of the evidence that the Jan. 6 committee has is likely to be highly incriminating to those suspected of planning or fomenting the attack on the U.S. Capitol, it may possess evidence and testimony that prove favorable to a criminal defendant.

Providing all witness transcripts and evidence is the only way to enable prosecutors to make legally required disclosures to indicted defendants.

With the possibility of a GOP-controlled House looming, if the Jan. 6 committee doesn’t take this opportunity to honor the Justice Department’s request, it may effectively confer amnesty on anyone indicted in connection with the insurrection by barring key prosecution testimony at trial.

Anything short of full cooperation could undermine the criminal prosecution of those who instigated the Capitol riot.

In fact, even if the department hadn’t sent its request, sharing all the transcripts this year should’ve been at the forefront of the minds of everyone on the Jan. 6 committee.

The potential to derail any future criminal trial isn’t a far-fetched scenario. Something similar arose in criminal cases relating to the infamous My Lai massacre in Vietnam more than 50 years ago. 

A federal court of appeals summarized the brutality of what happened: “On March 16, 1968, in the small hamlet of My Lai, in South Vietnam, scores of unarmed, unresisting Vietnamese civilians were summarily executed by American soldiers.”

Congress launched an investigation into My Lai, and a subcommittee interviewed 152 witnesses, compiled 1,812 pages of sworn testimony and collected 3,045 pages of witness statements. All testimony was taken in closed-door sessions; none was released to the public. The committee did issue a report. 

In subsequent court-martial trials of soldiers charged with killings at My Lai, the defense lawyers demanded that Congress turn over statements of eyewitnesses whom the prosecutors intended to call at trial. Congress refused and withheld the statements. In the wake of congressional stonewalling, judges issued contrary rulings. 

In the court-martial of Staff Sgt. David Mitchell, the judge barred prosecutors from calling those witnesses whom the congressional subcommittee had interviewed. This ruling excluded five of the eight proposed prosecution witnesses. Mitchell was acquitted.

A Yale Law Journal analysis about Mitchell’s case acknowledged the power of Congress, by withholding evidence, to affect the outcomes of criminal prosecutions.

In the highly publicized murder trial of Lt. William Calley, the trial judge ruled that Congress didn’t have to produce the statements. No prosecution witnesses were barred. Calley was convicted of murdering 22 civilians and another offense. 

Subsequently, Calley brought a habeas corpus petition in federal court arguing, in part, that congressional failure to produce the witness statements violated his right to a fair trial. A federal district court agreed, ruling that his conviction was “constitutionally invalid.” 

At the time, Daniel Kornstein, who wrote the Yale Law Journal analysis, wrote in The New York Times that under the judge’s analysis, “Congress could indirectly grant amnesty if it refused to release subcommittee testimony.” 

Later Calley’s victory was reversed by the 5th U.S. Circuit Court of Appeals. In a dissenting opinion, Judge Griffin Bell (who later became U.S. attorney general) concluded that the Supreme Court precedent in United States v. Brady, which required prosecutors to disclose information favorable to a criminal defendant, should also be applied to documents held by Congress. 

The Supreme Court didn’t decide whether a defendant can be convicted when Congress withholds witness statements or favorable evidence from the defendant. The Jan. 6 committee shouldn’t chance whether the current conservative Supreme Court might side with someone who is accused if a future Republican-controlled Congress withholds these documents. The committee shouldn’t negotiate some halfway response to the Justice Department’s request. Prosecutors now need all the evidence, not only to determine whether criminal charges are warranted but also to comply with their legal obligations. The success of future prosecutions of those criminally responsible for instigating the Capitol riot depends upon it.