There are signs that the department, urged by the commission, has begun investigating some of these other ‘spokes’. It is not surprising that the ‘spoke’ involving the Ministry of Justice itself has aroused acute interest. Recently, federal agents conducted a search of the home of Mr. Clark, who had been elevated to acting head of the Justice Department by Mr. Trump, and seized the phone of Mr. Eastman, an attorney who advised Mr. Trump on attempts to undo the elections.
But other signs aren’t so encouraging: Department prosecutors were reportedly surprised by Ms. Hutchinson’s testimony. That is not a sign of a thorough fact-finding. The department has more tools than Congress to learn the truth. It could have interviewed Ms. Hutchinson a long time ago, as well as many others whose evidence is relevant—indeed, Ms Hutchinson alone has given investigators countless clues to pursue.
For those who do not voluntarily cooperate with a Justice Department investigation, prosecutors can issue grand jury subpoenas and obtain their testimony under oath, subject to criminal penalties such as perjury — just as prosecutors in Georgia do. And people can be given immunity to testify if they validly affirm the Fifth Amendment. Obtaining testimonials from the grand jury is indispensable; it prevents witnesses from later credibly claiming that they did not make certain statements in an interrogation or that an interrogation report is incorrect (or worse).
I’ve been involved in numerous high-profile investigations that have sparked significant Congressional interest, and what I’ve seen in this investigation is not typical Justice Department behavior. Usually, prosecutors and agents don’t want Congress to pre-empt their investigation, and they work hard to make sure that doesn’t happen. The department wants to hear witnesses first, and prosecutors make sure the targets are completely truthful about their own possible wrongdoings and that their testimony is corroborated; use tools to turn over recalcitrant witnesses; and building a case without revealing evidence to other potential witnesses — efforts that could fail if Congress conducts private and public interviews that could inadvertently undermine the strongest criminal case possible.
Department attorneys and congressional committees usually work collegially to avoid these problems, something that can happen if Congress has confidence in the dedication and determination of the Department of Justice. That doesn’t seem to be happening here. We’ve seen the unusual public submission of a letter from the Justice Department’s leadership to access evidence from the commission, something that was largely unnecessary if it had already obtained that evidence. And the fact that the letter was sent is a clear sign of a rift in the relationship between the two branches, something I haven’t seen even during high-profile investigations like Enron and the Mueller investigation.
The American public has a right to a thorough, fearless, competent and fair criminal investigation. That is still possible, and what facts that investigation uncovers and what prosecution decisions are made after that will certainly be up for debate. But until we pursue all the clues, that debate will be truly academic, at the expense of our democracy.
Andrew Weissmann (@AWeissmann_), a former Justice Department prosecutor and senior prosecutor in Robert Mueller’s special counsel investigation, is a professor of practice at New York University School of Law and the author of “Where Law Ends: Inside the Mueller Investigation.”