EmptyWheel: WHY JANUARY 6 COMMITTEE TRANSCRIPTS ARE URGENT

[Ohio Joe]

On June 6, DOJ charged the Proud Boy Leaders with sedition. As I noted at the time, the single solitary new overt act described in the indictment involved Jeremy Bertino, Person-1, seeming to have advance knowledge of a plan to occupy the Capitol.

--snip--

In a hearing during the day on June 9, the Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start. In the hearing there was an extensive and repeated discussion of the deposition transcripts from the committee investigation. AUSA Jason McCullough described that there had been significant engagement on depositions, but that the January 6 Committee wouldn’t share them. As far as he knew, the Committee said they would release them in September, which would be in the middle of the trial. Joe Biggs’ attorney insisted that DOJ had the transcripts, and that they had to get them to defendants.

--snip--

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

https://www.emptywheel.net/2022/06/16/why-january-6-committee-transcripts-are-urgent-proud-boy-jeremy-bertino/

I bolded that last paragraph because it is REALLY FUCKING IMPORTANT... READ IT AGAIN.

As always... I cannot urge you any harder... Go read it all. This is not a DOJ issue, it is not a J6 committee issue... This is a WE ARE IN UNPRECENDETED WATERS BUT ARE STILL A NATION OF LAWS ISSUE. Even scumbags that try to overturn elections are entitled to due process and a fair trial. If we here at DU are not on board with that then we are no better than the magats that tried end democracy in America.

[Jarqui]

1. "Proud Boys' attorneys accused DOJ of improperly coordinating with the ... Committee ..."

I'm a little confused.
Refusing to provide the transcripts to the DoJ kills that claim.

There is nothing to stop a DoJ official from having a little chat with someone who knows the testimony.
There are ways of having those 'conversations'. All sides know that.

I suspect some of this stink by the DoJ is for show.

As well, if the Proud Boys attorneys get the transcripts, as their defense would be entitled to, Trump et al could get their mitts on them and craft their testimony, public posturing, defense, etc around them.

I often agree with EmptyWheel but not so easily this time.

[Ohio Joe]

2. The 'stink' is from media, not DOJ

The DOJ is simply doing what they need to do based on what the PB’s are claiming in court.

Everyone gets the 1/6 transcripts in September… They become public. DOJ get ‘em, defense gets ‘em, you and I get them.

[Jarqui]

4. DoJ sent a letter asking for the transcripts

Justice Department says Jan. 6 committee interview transcripts 'critical' to criminal investigation
Failure to grant the DOJ access to these transcripts would complicate its ability to investigate rioters, three officials wrote in a letter to the committee.
https://www.nbcnews.com/politics/justice-department/justice-department-says-jan-6-committee-interview-transcripts-critical-rcna33995

The media did not write that letter.

DoJ's first letter asking for this was April 20th or so.

Media didn't write that letter either.

[Ohio Joe]

5. Yes, it is critical and without it does complicate things...

It is not ‘stink’. DOJ just found out last week the committee had interviewed a key witness. While PB’s claim some kind of collusion, the real concern is this second testimony coming out mid-trial and causing a problem. Regardless of the interview being given now or later, both sides get it at the same time. Best that happen pre-trial, so they asked for it. The committee needs to finish their work an issue a report before they release the transcripts. If DOJ and the committee had a side meeting, that would validate the PB’s claim, so they don’t do that and instead make the request that has to be denied.

It is what it is and each is doing what they need to do for their process. Any ‘stink’ between them is manufactured by the media.

[Jarqui]

9. Those letters were released to the media to create the media stink.

The media didn't make this stuff up.
That media stink kills the allegations made by the Proud Boy attorneys.

So you go to visit a person on the Committee to discuss what evidence you can get.
The file with the key transcripts is on their desk.
They're cordial and offer to get the DoJ visitor a coffee but warn them, they could get snagged and delayed by staff as they do.
So they go for the coffee. They're gone 20 mins leaving the file on their desk.
They come back and tell them they're sorry but can't give them the transcripts yet.
End of meeting.

I've literally done that with a prosecutor.
Nothing to report. Nothing knowingly disclosed.
Nod, nod, wink, wink.

I've also had conversations where you ask questions and they don't answer them but by inference or gesture, they do.

The Proud Boys lawyers know it but there's little beyond what they're trying to do to reveal it.

The Committee wants convictions. They're not going to screw the DoJ people who are sincerely trying to get them.

What truly smells here is that it is probably all for show. The Proud Boys lawyers and Trump are getting screwed.

[Ohio Joe]

10. Then you have committed a crime

"So you go to visit a person on the Committee to discuss what evidence you can get.
The file with the key transcripts is on their desk.
They're cordial and offer to get the DoJ visitor a coffee but warn them, they could get snagged and delayed by staff as they do.
So they go for the coffee. They're gone 20 mins leaving the file on their desk.
They come back and tell them they're sorry but can't give them the transcripts yet.
End of meeting."

This illegal behavior is exactly what DOJ is trying to avoid.

I'm done here, Debating that DOJ should be committing crimes is not something I'll engage in.

[Jarqui]

12. The law is not perfect.

It cannot be prepared for every circumstance.
That is part of the reason why we're always changing the laws - towards a more perfect union.
There are occasional times where the greater good needs a little help to prevail in some crazy circumstances.
That is when I got 'cooperation' from those who felt similarly. It was not for our own benefit.
Remember associate Director of the FBI, "Deep Throat" ? Where is Watergate without him?

In this circumstance, there is a wide conspiracy to overthrow the US government.
A significant % are still supporting Trump.
That side is routinely still not playing by the rules.
If we have to bend a couple of rules to nail them, so be it.
That is for the greater good.
It beats the heck out of losing the democracy.

It isn't the first time.
And it won't be the last.

[wnylib]

3. I'm with you on this.

[gab13by13]

6. I don't take threats well,

especially threats from a blog.

Let me get this straight, A traitor's lawyer is claiming that the select committee is coordinating with DOJ which makes DOJ partisan. So to prove that DOJ is not partisan the select committee must turn over all of its interviews to DOJ because DOJ doesn't have any evidence gathered by the select committee. Do I understand this right?

If the select committee and DOJ were working together, wouldn't DOJ already possess evidence from the select committee?

If this is about a case against one Proud Boy then why doesn't DOJ ask for specific select committee evidence related to this one case?

Finally, isn't it a ridiculous claim that DOJ charging someone with seditious conspiracy before a Congressional hearing is DOJ being partisan? In other words, DOJ should have charged everyone before the select committee hearings because now all of the trials are tainted. Looks to me like DOJ will have to shut everything down because the select committee fucked up its investigations.

[Ohio Joe]

7. No... Nobody is threatening anyone... Sheesh...

"Let me get this straight, A traitor's lawyer is claiming that the select committee is coordinating with DOJ which makes DOJ partisan. So to prove that DOJ is not partisan the select committee must turn over all of its interviews to DOJ because DOJ doesn't have any evidence gathered by the select committee. Do I understand this right?"

No, you do not.

Yes, PB's are making that claim... The claim has nothing to do with the request. The DOJ just found out last week the committee interviewed a key witness (they just found out because they are not working together). The concern is that there is a second testimony from this key witness... They don't know what he was asked or what he said. That coming out mid-trial could be disastrous... So they request the testimony. The committee needs to finish and issue their report before they give out what they have... So since nobody gets anything, the DOJ delays the trial.

"If the select committee and DOJ were working together, wouldn't DOJ already possess evidence from the select committee?"

They are not and should not be working together. They can share some information but anything DOJ gets, defense gets. This is how our justice system works.

"If this is about a case against one Proud Boy then why doesn't DOJ ask for specific select committee evidence related to this one case?"

It is not about one PB... Did you read nothing I posted?

"Finally, isn't it a ridiculous claim that DOJ charging someone with seditious conspiracy before a Congressional hearing is DOJ being partisan? In other words, DOJ should have charged everyone before the select committee hearings because now all of the trials are tainted. Looks to me like DOJ will have to shut everything down because the select committee fucked up its investigations."

No. DOJ charges when they have the evidence to charge regardless of what anyone else is doing. They do not charge before they have the ability to do so... That would be ridiculous.

[Novara]

8. Thank you for explaining this with common sense

"Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start."

Blah blah blah blah, right? If they were coordinating, then they wouldn't be asking for transcripts. More dumb lawyers.

I don't understand the rationale for holding all of it back. Seems there's got to be some of it that they could release.

Unless all of this is for show, to make the public believe that the DOJ and the committee are NOT coordinating.

There's so much we don't know about what goes on behind those closed doors.

[gab13by13]

11. Your original post is too confusing to me.

It sounded like the complaint was DOJ and the select committee were improperly coordinating, being partisan. Hard to be partisan when the committee is bipartisan.

Now you throw out something that wasn't clear in your original post that the select committee may have testimony from a corroborating witness? You are not clear, did the select committee also interview the defendant?

If the real issue is that the select committee may have testimony that shows the defendant lied why didn't you just say that? I don't understand all of this partisan/collusion stuff. If the select committee has evidence germane to the case why can't DOJ just subpoena it?

I have the feeling this is still about the select committee turning over all of its evidence.

[Ohio Joe]

15. I assumed you would read the article...

"It sounded like the complaint was DOJ and the select committee were improperly coordinating, being partisan. Hard to be partisan when the committee is bipartisan."

That is a PB complaint... It is not why DOJ wants the transcripts or why they asked for a delay.

"Now you throw out something that wasn't clear in your original post that the select committee may have testimony from a corroborating witness? You are not clear, did the select committee also interview the defendant?

If the real issue is that the select committee may have testimony that shows the defendant lied why didn't you just say that? I don't understand all of this partisan/collusion stuff. If the select committee has evidence germane to the case why can't DOJ just subpoena it?

I have the feeling this is still about the select committee turning over all of its evidence."

Sigh... No... Please... Read the article.

[Novara]

13. From the article, this is important:

This is from a letter from the DOJ to the committee:

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced. Given this overlap, it is critical that the Select Committee provide us with copies of the transcripts of all its witness interviews. As you are aware, grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the Department’s ongoing criminal investigations. Moreover, it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations. We cannot be sure that all relevant evidence has been considered without access to the transcripts that are uniquely within the Select Committee’s possession.

Emphasis mine. So, the DOJ has been investigating all along. It is important that they be able to compare depositions.

I don't understand the committee's holdup.

[onenote]

14. Thank you. I've been trying to make this same point in various threads.

You've done so in a more comprehensive and very convincing way.

[Ohio Joe]

19. I think it's hard for a lot of people...

The media wants ratings and facts alone are not enough... There has to be some infighting drama to make it all more exciting. It's like our modern-day yellow journalism but it exists almost everywhere. Thanks

[Novara]

16. Also from the article:

This is why this is urgent:

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

I mentioned before that the DOJ is on the clock. The committee really needs to get its shit together in regards to these traitors.

[gab13by13]

17. I thought a grand jury can indict a ham sandwich?

Correct me if I'm wrong, in a grand jury the defendant doesn't get counsel, it is just prosecutors.

[Novara]

18. The indictments of the PBs are already done, so I'm not sure what you mean.

The grand jury already indicted them.

The point of the article, if I read it correctly, is that if the DOJ misses the discovery deadline, the prosecutions of the PBs is endangered, and thus, the potential prosecution of the orange motherfucker is endangered. It is clear that the DOJ is prosecuting the PBs and using them to get to Trump.

The DOJ needs to have these materials and they need to turn them over to the PBs attorneys. That's how prosecutions work. One of our lawyers here can likely elucidate more why this is important and why not getting the materials endangers the prosecutions. For me, I am taking Marcy Wheeler's word for it because she always knows what she's talking about.

[gab13by13]

21. If DOJ doesn't have any more information/evidence,

how can it turn it over? Why should DOJ be responsible for evidence that the select committee may have uncovered?

So if new evidence is gleaned before trial and DOJ was unaware of said new evidence can it still use the new evidence at trial?

Are we really talking about the defense claiming that the select committee may have evidence and that DOJ should force the committee to turn over the evidence to DOJ so that it can be listed in discovery?

What if the Wa. Post has evidence that may be germane to the trial, should DOJ ask the Wa. Post to turn over all of its interviews?

[Novara]

36. The DOJ is asking for the committee's evidence

Not the other way around.

"Are we really talking about the defense claiming that the select committee may have evidence and that DOJ should force the committee to turn over the evidence to DOJ so that it can be listed in discovery?"

Yes. It's part of discovery. The DOJ has a right to ask anybody and their brother for evidence that is germane to prosecuting these motherfuckers.

The DOJ is on the clock. The deadline for discovery is today. That means they need to see the committee's evidence NOW or it may hinder their prosecution of the traitorous motherfuckers. Isn't that what we want?

[inthewind21]

42. Anyone

Consider the possibility the reason this is being aired publicly is so DOJ can establish "we don't have it cause it's not our work product" to prevent PB defense from being able to claim "withheld evidence?"

[onenote]

46. If the trial started as planned in August and the Committee documents are released in September

It will at best disrupt the trial schedule and at worst, could create credibility issues with respect to the DOJ witnesses. If DOJ had been given access to the transcripts when they were requested, the trial might have been able to start in August as planned. Now it won't start until December.

[Novara]

48. That's not how it works in criminal trials

There is a clock. The deadline for discovery, I read, is TODAY. Unless a judge allows for extra time (and the DOJ has probably already filed a motion asking for it), the materials have to be given to the DOJ today.

Correct me if I'm wrong, lawyers. Maybe we could all benefit from a general explanation. I'm not a lawyer but I read a LOT, and this is ased on what I've read.

[onenote]

49. The transcripts will become public in September during the trial

They will be admissible.

[Fiendish Thingy]

27. Yes, but then a judge can dismiss the sandwich's indictment for lack of due process. Nt

[Scrivener7]

20. The DOJ has always known the Committee is investigating.

The DOJ, presumably, has known they were investigating the same people. The DOJ also presumably knew the Committee was not doing this for kicks and that there would be a hearing.

The DOJ has been "dotting i's and crossing t's" for at least 15 months now.

Shouldn't they have had this conversation with the Committee before now? If it might screw up their case, shouldn't they have had the conversation before they brought the charges? I have been told ad nauseam that the DOJ doesn't bring a case it isn't sure of. This is an awfully big hole, if your argument is what is happening.

Is the Committee's information a surprise to them? If so, why?

And now, suddenly, things are urgent?

Sorry. The argument makes no sense at all.

[gab13by13]

22. I am starting to understand this,

the defense is making a connection between DOJ and the select committee as if they were working together.

DOJ may be aware that the select committee held interviews with people who may have information germane to the PB case. It sounds to me like DOJ is not aware of what evidence the select committee has. If DOJ believes it is liable for new evidence that the select committee may possess, why can't it subpoena that particular interview, why does it have to be every interview?

If DOJ believes that the NY. Times did an interview with a possible witness germane to its case can it force the NY Times to turn over its evidence? What's the difference between the select committee and the NY Times?

[Scrivener7]

23. And why have they waited till the day before the deadline?

Thompson said weeks ago that he would give them the transcripts when the hearings were over. Why have they not done something about it before now?

[Ohio Joe]

26. Because...

They just found out that one of the people interviewed is a key witness. They need to know the testimony before the trial begins.

[Scrivener7]

31. They are investigating the same event. Shouldn't they have assumed

that their witnesses are all people who the Committee also interviewed?

[Ohio Joe]

33. Perhaps..

That may have been their purpose in the several requests they made for all the transcripts. Sadly... The committee could not give them over until they were done. Again... This is uncharted waters, not everything will go perfectly. That does not make it the big deal it is being made out to be.

[Scrivener7]

35. If it is not that big a deal (and I agree with that) then empty wheel is

a bit out of proportion with a headline about the 'urgency' of the Committee doing something it has already said it will not be doing, and which should be of only confirmatory value to the DOJ anyway.

[Ohio Joe]

41. The urgency is related to the trial...

Starting the trial before the transcripts are in hand should not be done, it could have disastrous results. That is why DOJ is asking for a delay.

[Bernardo de La Paz]

25. Difference? One is sworn, other is not. One is to government (legislative) other is to media. nt

[Ohio Joe]

24. They are doing separate investigations...

"Shouldn't they have had this conversation with the Committee before now? If it might screw up their case, shouldn't they have had the conversation before they brought the charges? I have been told ad nauseam that the DOJ doesn't bring a case it isn't sure of. This is an awfully big hole, if your argument is what is happening."

DOJ and the committee cannot cooperate in secret... That is the bogus accusation the PB's are trying to bring right now. Much of what the committee has done has not yet been revealed and will not until their final report. The committee has interviewed around 1k people and most of them are not known. DOJ just found out last week a key witness in a trial about to start testified before the committee... They also know his testimony will be revealed to the public in September. Having a second testimony from a key witness come out mid-trial could be disastrous.

This is not a fault with DOJ, it is not a fault with the committee... It simply is what it is in these uncharted waters. The end result is a delay in the trial starting. It is not some rift between DOJ and the committee or some botch by either as some want to make it out to be.

[Scrivener7]

28. Who said anything about doing it in secret? If the DOJ has dotted its i's and

crossed its t's, it has corroborated the testimony of that witness and knows it has the correct version. If it doesn't jive with the Committee's version, it can point out the witness's lies when he or she testifies.

It is a rift between the DOJ and the Committee, because the DOJ seems to want to make it so by publishing, mid-hearing, that the Committee is not cooperating with its demands for transcripts. Despite the fact, by the way, that Thompson said weeks ago that he will give the DOJ the transcripts when the hearings are done and not before.

That was pure theater and finger pointing.

[Ohio Joe]

30. Not true...

"It is a rift between the DOJ and the Committee, because the DOJ seems to want to make it so by publishing, mid-hearing, that the Committee is not cooperating with its demands for transcripts. Despite the fact, by the way, that Thompson said weeks ago that he will give the DOJ the transcripts when the hearings are done and not before.

That was pure theater and finger pointing."

That is simply not what happened. DOJ made a filing to delay the trial. Politico sensationalized what was in it... That is you theater and finger pointing.

[Scrivener7]

34. The DOJ sent a letter to the Committee saying the Committee was hindering

their own investigation. The the letter was sent Wednesday and not mid-hearing. My apologies for saying they sent it mid hearing. You are correct that it was only the news of it broke mid-hearing when the letter was sent the day before. You are incorrect in saying the DOJ did not do anything to make that news and it was all a product of a Politico story.

Nevertheless, I don't see how any of this should be a surprise to the DOJ.

Link to tweet

https://www.msn.com/en-us/news/politics/doj-jan-6-committee-e2-80-99s-refusal-to-share-transcripts-e2-80-98complicates-e2-80-99-investigation/ar-AAYyiFi

[Ohio Joe]

39. Again... Not true...

"It is now readily apparent that the interviews the select committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions."

This is from a court filing. The fact that the DOJ sent a letter to the committee is also from the court filing. It is not something DOJ tried to put out to the media for theater or finger pointing. It's the fact for why they need to delay. Terms like rift, tensions and other such hype are media inventions.

"Nevertheless, I don't see how any of this should be a surprise to the DOJ."

Because the investigations are both different and separate. The committee has interviewed around 1k people and there is no list of them either publicly known or privately known to the DOJ, only the committee knows all of them.

[Fiendish Thingy]

29. I applaud your courageous patience in attempting to explain a complex issue...

To people who mostly just want to be told who they should blame and direct their outrage towards.

[Ohio Joe]

32. I smoke a lot of weed

It helps

[Scrivener7]

37. Huh. And there I thought we were actually having a conversation about

this like adult people for a change. But if you need to smoke a lot of weed in order to have a conversation with me, I'll not trouble you further on this.

[Ohio Joe]

40. We are...

My weed smoking keeps me calm in all situations and you do not drive any of my needs.

[Novara]

38. clarification:

"Shouldn't they have had this conversation with the Committee before now? If it might screw up their case, shouldn't they have had the conversation before they brought the charges?"

No. It's my understanding that they can't legally ask for evidence from anybody else for discovery until they have brought charges. They only charged these motherfuckers on June 6.

[onenote]

47. DOJ first requested access to the transcripts months ago.

And yes, it's urgent because there are ongoing trials and grand jury sessions where the information in the transcripts could provide evidence -- both incriminating and exculpatory.

[FakeNoose]

43. Yes but why can't the deadline for discovery be extended

As you say, we're in uncharted waters and so much is happening at the same time. There's no way for the DoJ to keep up with all of this. The deadline is unreasonable in this case, especially in the tense political situation right now.

I'm sure the courts can understand that. SCOTUS (and other federal courts) can't let our democracy die over a stupid deadline that could easily have been extended.

[Ohio Joe]

44. As I'm understanding it...

Part of discovery is this guy's testimony... Not that he is cross examined but what he said to the DOJ that they plan to use during the trial (where he would then be cross examined). The delay is pushing discovery completion back... And also the trial. Sine they won't get the new information until September, discovery will resume then... The trial was supposed to begin I believe in mid-late Aug.

[onenote]

45. Correct.

Here is a link to the docket for the PB criminal case. The seditious conspiracy charge was just added via a superseding indictment on June 6. The trial was set for August, but has been pushed to December.

https://www.courtlistener.com/docket/59704100/united-states-v-nordean/?page=3