Former officials painted a chaotic picture of the days after the 2020 election during Thursday’s Jan. 6 select committee hearing: President Donald Trump put constant pressure on the Justice Department to investigate false claims of election fraud and ignored officials’ insistence that there was no stolen election.
Trump also tried to install a lower-level Department of Justice environmental lawyer, Jeffrey Clark, as the acting attorney general because he appeared willing to investigate claims of voter fraud — an act that one witness said could have led to a “constitutional crisis.” Clark’s home was raided by federal investigators just hours before the hearing.
Witnesses said Clark proposed sending letters to key swing states encouraging them to appoint new pro-Trump electors. This made him an outlier at DOJ, where top lawyers asserted the department had no such power. Justice Department lawyers threatened to resign en masse if Trump installed Clark as acting attorney general.
Trump appeared to ready to do it anyway. “What have I got to lose?” the president told then-Acting Deputy Attorney General Richard Donoghue, according to Donoghue’s testimony.
The hearing featured Donoghue, former acting attorney general Jeffrey A. Rosen and former assistant attorney general for the Office of Legal Counsel Steven Engel.
Two former congressional investigators helped Grid make sense of Thursday’s hearing and where the Jan. 6 investigation is headed: Anne Tindall, who is now counsel at the nonprofit group Protect Democracy, and Justin Rood, now investigations editor at Grid. Tindall and Rood explained how they believe the hearings, as well as the action we’ve seen from the Department of Justice, are building a strong case that Trump broke the law in the days after the election.
The conversation, moderated by Grid Policy Reporter Maggie Severns, has been edited for length and clarity.
Justin Rood: The morning of the hearing, there was the DOJ raid on Jeffrey Clark’s house. What do you guys make of that development?
Anne Tindall: A couple of things. If [DOJ has] taken some heat for moving slowly and methodically through these Jan. 6 and election subversion investigations, they seem to be picking up the pace and getting higher up the food chain. The raid suggests that a federal judge has signed off on it. That in itself is significant. A lingering question after each of these hearings is, ‘Well, what is DOJ going to do about this information?’ And yesterday, they made sure that before the hearing even started, we knew the answer to that question — at least for Jeffrey Clark.
Grid: So where is this going? We have DOJ looking at people like Jeffrey Clark. Is it possible that they stop at these low- to mid-level employees? What does this tell you about where the train is headed at DOJ?
AT: It is possible. I think there’s a difference in serving a warrant on Jeffrey Clark and filing an indictment against President Trump. There has never been a prosecution of a former president in our history. Of course, there has never been an effort to overturn an election and illegally hold on to power in our history. And the question is whether Merrick Garland will use the prosecutorial discretion that he retains to decide to file those charges.
G: Pardons were another key topic yesterday. Justin, what did we learn?
JR: The committee revealed that they had received testimony that five, possibly six members of Congress, all Republicans, had gone to Trump and requested pardons. That’s what the committee laid out yesterday. Now, I believe all of them had been attendees at a December meeting at the White House with Trump at which it seems like some basic plan was put together. Part of the concerns [might be] that they were part of a plan predating Jan. 6 that would be viewed as illegal.
G: When you look at the evidence right now, do you feel like there is a winnable case if the Department of Justice were to prosecute?
AT: I do. The entire DOJ was standing up and saying, ‘This is illegal, and we’ll quit if you ask us to report to someone who carries it out.’ That’s all really compelling evidence. I think the question is whether the DOJ will exercise its discretion in bringing it to a jury.
JR: I think that if this was not about the president of the United States, there would be no question he’d be prosecuted for it right away. And I think that this is a really textbook example of the way great political power can bend the perception of laws and legality, and change the decision-making matrix in, I think, some unfortunate ways. I also think the committee may have inadvertently done a great job at painting DOJ into a corner. Jeffrey Clark doesn’t have a whole lot to offer, other than Trump himself. Inevitably, it has to raise this question [to people like Clark] of like, well, if you don’t want to go to jail, or you want a lighter sentence, what do you have to share with us?
G: I’m going to jump in and play devil’s advocate here for a minute. In my reporting on this, one thing I heard from folks on the other side of this debate was, how could the department take this on? The optics for all the folks who are kind of skeptical of Jan. 6 would be that this is political persecution, right? It would also be the first time in history that this happened. We have a history of cutting plea deals or pardoning former presidents if they likely violated the laws. What’s your answer to that?
AT: Even if there is a difference and an unprecedented quality to indicting a former president, the question here to me is how could they not? Our most fundamental values are that we are a nation of laws, not men, and that no one is above the law. And if the only person above the law is the most powerful person in the world, we’re in a world of trouble.
Thanks to Lillian Barkley for copy editing this article.