Highly publicized congressional hearings with 1,000 depositions is a monstrous problem for DoJ

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Judge Tim Kelly, with the backing of several of the Proud Boys defendants and the Justice Department, said he would “reluctantly” set Dec. 12 as the new date to begin selecting a jury for the trial, which prosecutors anticipate lasting four to six weeks. But Kelly also floated the prospect of an additional delay, should the parties agree to wait until after the holidays.

The department has urged the select committee in recent weeks to share all 1,000 of its witness transcripts with prosecutors, but the panel has so far declined, preferring to retain exclusive control of the evidence it has gathered. Prosecutors complained that the committee’s reluctance has hampered their ability to advance the Proud Boys prosecution, and they’ve agreed that the possibility of additional evidence becoming public created potential “prejudice” that warranted a delay in the trial.

Rep. Bennie Thompson (D-Miss.), chair of the Jan. 6 select committee, said he anticipated beginning to share some of its evidence with the Justice Department in July but not before the committee completed its slate of public hearings. He emphasized, though, that it would not be a “shared transcript” and that the committee would not let the department keep the material, only review it.

Thompson’s proposal may present an additional challenge for the Justice Department. (Judge) Kelly has ordered the department to immediately share any new evidence it receives from the committee with defendants in order to fulfill evidence-sharing and discovery obligations. But if the Justice Department is permitted to view the evidence only in committee spaces, it’s unclear how the department would share it with Proud Boys’ attorneys.

read more: https://www.politico.com/news/2022/06/22/proud-boys-trial-delay-jan-6-committee-uncertainty-00041463


___Five alleged members of the extremist group the Proud Boys, including their former leader Henry “Enrique” Tarrio, are due to go on trial Aug. 8 on charges of seditious conspiracy. The trial, expected to last more than a month, represents one of the two most important criminal cases to arise so far out of the Justice Department investigation into the planning and execution of the attack on Congress that delayed for hours the ceremonial counting of votes affirming Joe Biden’s 2020 presidential victory.

The committee has highlighted witness testimony and video evidence about what lawmakers say is potentially criminal behavior on the part of former president Donald Trump and others who falsely claimed the 2020 election was stolen. The hearings do not include rebuttal arguments or questions...

Experts say there is a larger legal problem lurking, too: the possibility that buried in the transcripts of more than 1,000 witness interviews the committee plans to release with a public report in September are pieces of evidence that might help the Proud Boys defendants.

The committee has said it will share those transcripts with the Justice Department when they are done holding hearings. Prosecutors have said that timetable is not good enough because they need to see any such evidence well before the trial begins.

In a letter last week to the committee, senior Justice Department officials wrote “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.”

“As a separation of powers issue, this is a brain twister,” said Stanley Brand, a former counsel for the House of Representatives who has recently represented some Jan. 6 witnesses and defendants. “But it was also totally inevitable — you have the largest criminal investigation in Justice Department history, and you plunk down in the middle of that, a highly publicized set of congressional hearings with 1,000 depositions. That’s a monstrous problem in terms of meeting your Brady obligations under the law. My guess is prosecutors don’t really know most of what’s in those depositions. We’ve only seen a smidgen.”

read more: https://www.washingtonpost.com/national-security/2022/06/21/proud-boys-trial-hearing-trump/

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[Justice matters.]

1. DOJ should ask for a list of the J6 witnesses and do their own

investigations...

Call them in FBI compounds and ask them to tell everything they know.

Or plead the 5th?


On edit: Why did they wait that long??? They could have started doing that since January (at the very least)...

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3. DOJ has done their own investigations and was ready to take Proud Boys to trial

...a hearing was scheduled for August, but the uncertainty of what is in Congress' depositions (some of which is being made public in the hearings) has created the conflicts clearly outlined in what I posted above.

Cases take time to move through courts. It's not as simple as just gathering evidence and making conclusions, as Congress is at liberty to produce in their hearings. DOJ has to contend with every defense motion, with challenges to most of the documents, records, and other communications obtained through subpoenas issued out of their grand juries to the accused.

We only know about what we can glean from actual court appearances, arrests and other official proceedings, since DoJ doesn't broadcast to the public what evidence they've gathered. But this isn't about the DOJ 'doing their own investigations.'

It's about evidence Congress is throwing out in public which the defense will argue (as they're allowed to) is unfairly prejudicing their right to a fair trial because of they don't have access to the bulk of evidence Congress is using in their public presentations.

"In 2015, a federal judge tossed out an obstruction charge against a former BP exec charged with misleading lawmakers about the severity of an oil spill, ruling that since Congress would not provide some witness testimony, he could not get a fair trial."
https://www.washingtonpost.com/national-security/2022/06/21/proud-boys-trial-hearing-trump/

[elleng]

2. *the largest criminal investigation in Justice Department history,

and you plunk down in the middle of that, a highly publicized set of congressional hearings with 1,000 depositions. That’s a monstrous problem in terms of meeting your Brady obligations under the law. My guess is prosecutors don’t really know most of what’s in those depositions. We’ve only seen a smidgen.”'

[Mr. Ected]

4. Pick your poison, folks:

Either you hold the Congressional hearings first, allowing the general pubic to learn and form invaluable opinions regarding the subject matter, but potentially delay criminal trials of the accused, or...

...let DOJ assume control from the start, running a largely confidential investigation out of the public eye, potentially for years, keeping us in the dark and ultimately permitting the fascist wave to drown us all.

I think they made the right choice.

[Novara]

5. I agree. The public NEEDS to see this, and only a select committee can give us this much info.

It's a hiccup and it's because BOTH ARE INVESTIGATING at the same time. The DOJ is right to seek out these interviews to look for additional and possibly prosecutable evidence, and to look for consistency.

I would much rather see these trials delayed a little in order for the public to get all the information the committee has first, then the DOJ can go to work. It's clear by this timing conflict that the DOJ is anxious to get these prosecutions underway, and that's a very good thing. The committee will be done this fall.

Justice will be done. It won't be quick but it will be done. I'd rather have it done right than done sloppy and quickly.

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7. investigations are always conducted in secret

...and congressional hearings don't prosecute anyone.

Whether they made the right choice to begin hearings would seem to depend on what effect they have on actual prosecutions. It shouldn't be a surprise to the Jan.6 committee that their evidence would be the subject of upcoming trials. The DoJ has been telling them this since April.

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[W_HAMILTON]

6. I don't buy that (from the DOJ) one bit.

If the DOJ has done its job, it shouldn't need Committee transcripts -- go forward and prosecute the cases, which is their job.

If the Committee transcripts show that those they are now prosecuting also committed additional crimes, either by lying under oath or new crimes they failed to uncover on their own, then prosecute them for those as well when that time comes.

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8. you're not reading anything like that

...ANY trial they bring forward which deals with the same principals brought forward in the public hearings will argue that their lack of access to the committee's evidence prevents them from getting a fair trial.

They have every right to expect the witness transcripts to be available to their defense, in full, not just what is presented in the hearings. THAT's what's imperiling the upcoming trials, the expected demands for documents, and depositions that DOJ can't independently produce to the accused, but is obligated to do so under discovery rules.

It's not a small thing. It's a conflict which could derail prosecutions. That's why the DOJ agreed to delay the trial, and that's why the defense asked for the delay.

There is also the matter of DOJ's need to compare the witness testimony and depositions to what they've obtained on their own through grand jury subpoenas and witness cooperation for differing accounts which could undermine their prosecutions, or inconsistencies which may further implicate defendants.

DOJ isn't able to shift around on the political wind like Congress. They don't set court dates, judges do that. Either they're ready to move forward, or their prosecutions could be in doubt. In this case, it's Congress causing the uncertainty, not some doubt about the weight of their evidence.

It isn't as simple as uncovering new evidence. That's not at the front of the DOJ's stated concerns.

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[W_HAMILTON]

9. The legislative branch is completely separate from the executive branch.

Many of these criminal prosecutions brought by the DOJ have not relied on the Committee's findings for their evidence, and several of the prosecutions recommended by the Committee to the DOJ, the DOJ has refused to act upon.

The DOJ is picking and choosing when it wants to be beholden to Congress and when it wants to do its own thing, and it sure seems like they are erring on one side more often than not -- and that side ain't Congress's.

If DOJ wants to know what certain witnesses told the Committee, they should have brought their asses in on their own accord and asked them whatever questions they want answered. The Committee should not be doing DOJ's investigative work for it.

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10. the committee isn't doing the DOJ's work for them

...they're actively interfering with the DoJ's ability to actually prosecute cases, their work product.

You really should read what's posted.

[W_HAMILTON]

11. They are two completely separate tracks.

And the Committee is doing what it is very much constitutionally authorized to do.

For all intents and purposes, the Committee's work is completely separate from what is being done at DOJ -- and the DOJ acknowledges this by refusing the prosecute the few cases that the Committee has directly referred to them for prosecution.

There could be no Committee investigation whatsoever and it would not preclude DOJ from gathering its own evidence of the numerous crimes committed related to the 2020 election. If the DOJ wants to know what someone said that the Committee interviewed, DOJ should interview them.

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12. the fact that the committee did decide to go forward with public hearings has imperiled the DOJ

...to the point where a Proud Boy trial has been delayed - not only because the DoJ needed to square their evidence with what the committee is releasing publicly in the hearings, but because the accused are already demanding access to the committee's witness testimony, something which they are not only entitled to, but the DOJ prosecutors are obligated to produce.

DoJ has already 'gathered evidence' and has proceeded to move the people they had arrested into trial. The committee's decision to move forward with the hearings has already caused a delay in the prosecution of the very people Congress wants to talk about into July.

The DoJ could object to the delay, but why would they risk losing their case because of evidence that MUST be produced to the accused which they have not seen, evidence which they have no idea whether it lines up with their prosecution or conflicts with it?

More importantly, DoJ doesn't have the option of just ignoring those 1000 witness files because the defense has predictably latched on to them, and will comb through them looking for something that exonerates their clients.

That's what this delay is about. Why would anyone want to move forward with a possible land mine in the committee testimony which hasn't surfaced in the public hearing? That's what the DOJ is asking for the opportunity to discover for themselves, independent of what the defense will certainly take on.

The idea that the DOJ should duplicate witness testimony ignores that it won't keep the defense from demanding access to the committee transcripts. That's out of the bag. It can't be undone, because Congress moved forward with the hearings. That bell has already been rung, and duplicating the testimony will only risk deviations which can be exploited by the defense.

Besides, the committee has ready-made depositions and testimony which can be easily inserted into the prosecution case. It's a no-brainer to use it, and not treat the people from your own majority party administration's Justice Dept. like some kind of opposition.

I mean, what the hell is this supposed to accomplish keeping evidence that the DoJ can use out of their hands? What's the actual value in hoarding evidence in a file somewhere in Congress like that's going to solve something?

The way to stop these offenses isn't to talk endlessly about, or even stage a hearing complete with handpicked evidence and a consequence-free verdict from politicians.

EVERYTHING rides on the actual prosecutions, but some still insist the DoJ should not only fight this with one hand tied behind their back, but should just ignore the land mines Congress has set in their path and press forward like the congressional show is everything - and yet is nothing that the DOJ should benefit from.

I think some folks have lost the plot. Congress informs, the DoJ prosecutes. Congress has a responsibility to make certain what they uncover doesn't just get lost in the airwaves, but becomes part of actual prosecutions. Anything less is just a big show for nothing.