There are signs that the department, spurred on by the committee, has begun to look into some of these other spokes. Unsurprisingly, the spoke involving the Justice Department itself has attracted acute interest. Recently, federal agents conducted a search of the home of Mr. Clark, whom Mr. Trump considered elevating to be acting head the Justice Department, and seized the phone of Mr. Eastman, a lawyer who advised Mr. Trump on efforts to overturn the election.
But other signs are not so encouraging: Department prosecutors were reportedly surprised by the testimony of Ms. Hutchinson. That is not a sign of a robust investigation into the facts. The department has more tools than Congress does to learn the truth. It could have interviewed Ms. Hutchinson long ago, as well as many others whose evidence is relevant — indeed, Ms. Hutchinson alone provided investigators numerous leads to pursue.
For those who do not voluntarily cooperate with a Justice Department investigation, prosecutors can serve grand jury subpoenas and obtain their testimony under oath, subject to criminal penalties like perjury — just as Georgia state prosecutors are doing. And people can be given immunity to compel their testimony if they validly assert the Fifth Amendment. Obtaining grand-jury testimony is indispensable; it forestalls witnesses from credibly claiming later that they had not made certain statements in an interview or that an interview report is inaccurate (or worse).
I have been involved in numerous high-profile investigations that engendered significant congressional interest, and what I have seen in this inquiry is not typical behavior from the Justice Department. Usually, department prosecutors and agents don’t want Congress jumping ahead of their investigation, and they work hard to make sure that doesn’t happen. The department wants to interview witnesses first, and prosecutors make sure that targets are fully truthful about their own potential wrongdoing and that their testimony is corroborated; use tools to flip recalcitrant witnesses; and build a case without revealing evidence to other prospective witnesses — efforts that can falter if Congress is conducting private and public interviews that may inadvertently undermine the strongest possible criminal case.
Department lawyers and congressional committees usually work collegially to avoid these issues, something that can happen when Congress has faith in the diligence and resolve of the Justice Department. That does not appear to be happening here. We have seen the unusual public filing of a letter from Justice Department leadership seeking access to committee evidence, something largely unnecessary if it had already obtained that evidence. And the fact that the letter was sent is a clear sign of a breakdown in the relationship between the two branches, something I did not see even during high-profile investigations like Enron and the Mueller investigation.
The American public is entitled to a thorough, fearless, competent and fair criminal investigation. That is still possible, and what facts that investigation reveals, and what prosecutorial decisions are made thereafter, will surely be subject to debate. But until we pursue all leads, that debate will be truly academic, to the detriment 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 the New York University School of Law and the author of “Where Law Ends: Inside the Mueller Investigation.”
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