The Justice Department despatched a letter to the House committee investigating the Jan. 6 assault on the U.S. Capitol, requesting transcripts of closed-door witness interviews the committee has carried out be shared with the division. The letter, despatched on April 20, was first reported Tuesday by The New York Times.
Rather than readily agree with the Justice Department’s request, committee Chairman Bennie Thompson, D-Miss., rejected it as “premature” following the news report.
Even if the division hadn’t despatched its request, sharing all of the transcripts this yr ought to’ve been on the forefront of the minds of everybody on the Jan. 6 committee.
That’s a blunder of epic proportions.
The solely prudent reply is to promptly ship to the Justice Department not solely each transcript of the greater than 1,000 interviews it has carried out but in addition all proof within the committee’s possession.
In a blatant turf-protecting response, Thompson mentioned, “We told them that as a committee, the product was ours, and we’re not giving anyone access to the work product.” He additionally mentioned division officers may view the paperwork in individual.
This response is a vital miscalculation. For two causes, something wanting full cooperation may undermine the legal prosecution of those that instigated the Capitol riot.
First, after the November midterms, it’s probably that the Republicans will regain management of the House, and, as members of the GOP have threatened to do if that occurs, the Jan. 6 investigation may very well be shut down. The House committee’s nonpublic witness information may then be hidden in a authorities warehouse. Prosecutors want time to marshal proof enough to show guilt past a affordable doubt earlier than anybody conceivably may very well be indicted. These interview transcripts would offer federal prosecutors with a operating begin in that effort.
Second, a little-recognized authorized pitfall may torpedo any legal prosecution if the committee’s supply of proof to the Justice Department is incomplete. Two classes of paperwork are implicated: all statements “in the possession of the United States“ made by prosecution trial witnesses and exculpatory evidence held by federal prosecutors.
The Jencks Act, 18 U.S. Code 3500, mandates that U.S. prosecutors provide a criminal defendant with all prior transcribed statements made by any prosecution witness about the topics that witness testified about during direct examination. If prosecutors fail to deliver such statements, the consequences can be severe. A trial judge can strike a witness’ testimony or grant a mistrial.
In addition, due process requires prosecutors to give a criminal defendant any exculpatory evidence in their possession. We can’t ignore the possibility that while much of the evidence that the Jan. 6 committee has is likely to be highly incriminating to those suspected of planning or fomenting the attack on the U.S. Capitol, it may possess evidence and testimony that prove favorable to a criminal defendant.
Providing all witness transcripts and evidence is the only way to enable prosecutors to make legally required disclosures to indicted defendants.
With the possibility of a GOP-controlled House looming, if the Jan. 6 committee doesn’t take this opportunity to honor the Justice Department’s request, it may effectively confer amnesty on anyone indicted in connection with the insurrection by barring key prosecution testimony at trial.
Anything short of full cooperation could undermine the criminal prosecution of those who instigated the Capitol riot.
In fact, even if the department hadn’t sent its request, sharing all the transcripts this year should’ve been at the forefront of the minds of everyone on the Jan. 6 committee.
The potential to derail any future criminal trial isn’t a far-fetched scenario. Something similar arose in criminal cases relating to the infamous My Lai massacre in Vietnam more than 50 years ago.
A federal court of appeals summarized the brutality of what happened: “On March 16, 1968, in the small hamlet of My Lai, in South Vietnam, scores of unarmed, unresisting Vietnamese civilians were summarily executed by American soldiers.”
Congress launched an investigation into My Lai, and a subcommittee interviewed 152 witnesses, compiled 1,812 pages of sworn testimony and picked up 3,045 pages of witness statements. All testimony was taken in closed-door periods; none was launched to the general public. The committee did situation a report.
In subsequent court-martial trials of troopers charged with killings at My Lai, the protection legal professionals demanded that Congress flip over statements of eyewitnesses whom the prosecutors supposed to name at trial. Congress refused and withheld the statements. In the wake of congressional stonewalling, judges issued opposite rulings.
In the court-martial of Staff Sgt. David Mitchell, the choose barred prosecutors from calling these witnesses whom the congressional subcommittee had interviewed. This ruling excluded 5 of the eight proposed prosecution witnesses. Mitchell was acquitted.
A Yale Law Journal evaluation about Mitchell’s case acknowledged the facility of Congress, by withholding proof, to have an effect on the outcomes of legal prosecutions.
In the extremely publicized homicide trial of Lt. William Calley, the trial choose dominated that Congress didn’t have to produce the statements. No prosecution witnesses had been barred. Calley was convicted of murdering 22 civilians and one other offense.
Subsequently, Calley introduced a habeas corpus petition in federal courtroom arguing, partially, that congressional failure to produce the witness statements violated his proper to a honest trial. A federal district courtroom agreed, ruling that his conviction was “constitutionally invalid.”
At the time, Daniel Kornstein, who wrote the Yale Law Journal evaluation, wrote in The New York Times that beneath the choose’s evaluation, “Congress could indirectly grant amnesty if it refused to release subcommittee testimony.”
Later Calley’s victory was reversed by the fifth U.S. Circuit Court of Appeals. In a dissenting opinion, Judge Griffin Bell (who later turned U.S. legal professional common) concluded that the Supreme Court precedent in United States v. Brady, which required prosecutors to disclose information favorable to a legal defendant, also needs to be utilized to paperwork held by Congress.
The Supreme Court didn’t determine whether or not a defendant could be convicted when Congress withholds witness statements or favorable proof from the defendant. The Jan. 6 committee shouldn’t probability whether or not the present conservative Supreme Court would possibly aspect with somebody who is accused if a future Republican-controlled Congress withholds these paperwork. The committee shouldn’t negotiate some midway response to the Justice Department’s request. Prosecutors now want all of the proof, not solely to decide whether or not legal costs are warranted but in addition to adjust to their authorized obligations. The success of future prosecutions of these criminally accountable for instigating the Capitol riot relies upon upon it.