The January 6 Project
When Reading the Jan. 6 Committee's Summary, Don’t Skip the Notes!
The most important feature of the 154 pages of “Introductory Material to the Final Report of the Select Committee” is not the much-discussed criminal referrals of Donald Trump and others.
The criminal referrals—released Monday by the Select Committee to Investigate the January 6th Attack on the United States Capitol in the run-up to the release of the rest of the report over the next few days—are a one-day story, effectively a set of op-eds by the committee sent to an audience that doesn’t make decisions by reading external op-eds.
The most important feature is also not the narrative recap of the hearings the committee conducted over the course of the summer and fall. The narrative material, at least the narrative in the executive summary, adds only marginally to what the public already knew from the hearings themselves. While the full report will undoubtedly add more, it likely won’t change the fundamental story. If it did, there would have been more hearings, or different hearings. The committee had a story to tell—and in the main, it has told it already.
The critical feature, at least in my opinion, is the endnotes—all 762 of them—which stretch collectively from page 104 all the way to page 154 and, particularly, the material that these endnotes cite.
Consider humble note number 50, for example, which reads in its entirety:
See, e.g., Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of General Mark A. Milley (Nov. 17, 2021), p. 121; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Alyssa Farah Griffin, (April 15, 2022), p. 62; Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (Sep. 14, 2022), p. 113; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Kellyanne Conway, (November 28, 2022), pp. 79-84.
It’s hardly a gripping read—until, that is, you look at the text on page 10 that it supports. That, in turn, reads as follows: “As the Committee’s hearings demonstrated, President Trump made a series of statements to White House staff and others during this time period indicating his understanding that he had lost” the 2020 election.
Now look at the note again: Apparently, Gen. Milley, Alyssa Farah Griffin, Cassidy Hutchinson, and Kellyanne Conway all told the committee that Trump had made statements “indicating his understanding that he had lost.” In some cases, as with Farah and Hutchinson, we already knew this. But in some cases, we did not know it. The Conway interview, for example, took place less than a month ago, and the cited portion of the transcript stretches over some five pages—meaning that she may have had a fair bit to say on the subject of Trump’s knowing that he was lying when he told the public the election had been stolen from him.
We will find out just how strong the evidence on this point is later this week when the transcripts themselves become public.
While it is unlikely that the Jan. 6 committee’s report will deeply influence the behavior of the Justice Department in its criminal investigation, such material may well provide us with a window into what the department has already discovered.
After all, the Justice Department has more powerful investigative tools at its disposal than does the committee. It has been investigating many of the same questions that the committee has for a while now. What’s more, witnesses who can stiff the committee can’t easily stiff a grand jury subpoena. So if the committee has learned that four witnesses can testify to Trump’s acknowledging that he lost, it seems likely that the Justice Department has at least that many.
And in certain areas, it may also provide important tips and leads for the department. Even strong investigative teams with powerful tools overlook things, after all. And the Justice Department is no exception. The committee has interviewed a lot of people. And sometimes, it has beaten the department to important things. Cassidy Hutchinson’s explosive allegations, for example, reportedly came to the department’s attention as a result of her cooperation with the committee. It is likely that buried in the details, the notes, and the source texts are important tidbits the department has missed. The department has sought committee transcripts at various times over the past year. This is no doubt one reason why.
I focus on the specific matter of note 50 because the evidentiary question it concerns is actually an important one. As commentators have considered Trump’s possible criminal exposure in connection with Jan. 6, the question of his mens rea has come up frequently. Did he really know he had lost the election or did be believe his own nonsense? And if the latter, to what extent can he really be said to have had the requisite criminal intent to violate the relevant statutes?
There are potential answers to these questions, but the matter is a whole lot easier if the government could just put on evidence that Trump was simply lying when he repeatedly professed to have won and had the election stolen from him by fraud.
The report’s note, and the transcribed interviews to which it cites, show that there may be a number of witnesses prepared to testify based on firsthand information that Trump knew he was lying. The committee had made this allegation in one of its early hearings, but as I summarized with Matt Gluck and Tia Sewell, it was stronger on his having been informed of the fact than on showing he had ever really internalized it himself:
[T]he committee is wholly persuasive that Trump was made aware of his defeat and of the meritlessness of his claims of fraud. Its presentation on [this point] lacks only a smoking gun as to Trump’s subjective state of mind in making the claims he advanced. During the committee’s fifth hearing, Chairman Thompson asserted that “Trump knew he lost.” The evidence on this point largely consists of his having laid the groundwork for the claim before Election Day and the information available to him being so voluminous that any blindness on his part was necessarily willful.
In countless ways like fleshing out Trump’s state of mind, the notes and the material they point to are going to be a gold mine for journalists, historians, scholars, curious citizens—and, yes, lawyers—for years to come. They will offer a uniquely detailed portrait of a White House in crisis.
There are reportedly more than 1,200 witness interviews, including with everyone from senior White House officials to rioters, rally organizers, election workers, and law enforcement officers. Imagine if Bob Woodward had transcribed all of his Watergate interviews and released the transcripts in real time. That is what the committee appears to be doing, and the body of its investigative work may prove far more interesting and important than the committee’s own interpretation of the material it has collected.
Not to say that the committee’s own narrative, built from these Lego pieces, is unimpressive. It’s very impressive. But it’s also not new, at least not in the main. Unlike Special Counsel Robert Mueller, the committee showed its hand before releasing its report. To wit, the committee made a decision to scoop itself over the summer, telling its story in its string of dramatic hearings. That made for excellent television and, whatever impact it may or may not have had on public opinion, a valuable form of accountability of its own. Unlike a report that goes thud on a desk, those hearings reached an enormous audience, and they did so in the months preceding the midterm elections.
But the price of having that drama then is the committee’s having cannibalized its own story’s impact so that the report’s release now is a bit less of an event. You don’t get to elicit gasps twice from Cassidy Hutchinson’s testimony. And the multipart plan to overturn the results of an election, shocking though it is, is inevitably going to feel a little sleepier as a 100-page executive summary document than it will as a serialized television thriller told live in a series of congressional hearings—especially when the television drama is the OG production and the long text version is the remake.
This problem may get worse when the committee releases the full report—at least for some readers. On the one hand, the extended dance version follows the same storyline as the long text remake, which follows the same storyline as the serialized show. So a lot of people might get bored, it being a story they know already: Trump loses the election, lies about it, and goes into a protracted three-month battle to overturn the results. The battle includes pressuring state officials to miscount the vote and state legislators to appoint fake electors, attempting to corrupt the Justice Department to get it to intervene on his side in contested states, pressuring Vice President Pence to reject the votes cast by certain Biden electors, and when all else failed, loosing a mob on the Capitol while Congress was counting the electoral vote.
If your gorge rises at this story in relative short-form, you may be—as I am—waiting breathlessly for the other 700 pages. But a lot of people already feel like they know the story, and I suspect the longer version will feel like old news to them.
On the other hand, if your fundamental interest as a reader is the question of accountability for Trump and his entourage, and you’re reading this material with an eye toward what the Justice Department may do with it—or with the version of it their own investigation has collected—the executive summary and the full report are essential elaborations of the hearings. The hearings, after all, went by so quickly, it could sometimes be hard to tell what was narrative and what was editorial comment on the part of the committee members and what was proven fact.
Figuring out, even among the material that was actually testimony, what would likely be admissible evidence and what was hearsay or witness opinion was even harder.
The narrative documents, and particularly the underlying transcripts, by contrast, allow a much more careful consideration and assessment of the evidence. They allow the reader to see the diversity of statements: which ones conflict with one another and conflict with the committee’s narrative and which ones reinforce one another and support the narrative; which ones have internal contradictions that will render a witness Jell-O before cross-examination and which ones are internally consistent.
They also allow the reader, as the committee has done with its referrals, to begin thinking like prosecutors—that is, putting together fact patterns into potential cases or, for would-be civil litigants, into potential civil causes of action.
The committee’s own effort to do this strikes me as plausible but incomplete—at least in the executive summary. As we have discussed on Lawfare at length, there are complex legal issues that arise in applying criminal statutes to the president. These obstacles are not necessarily prohibitive, but the Justice Department will not move forward without a coherent theory of how to square an indictment with decades of departmental caution on such questions. At least in the version of the referrals included in the summary materials released Monday, no discussion of these questions appears. The committee may have more to say on the subject in the extended dance version. If not, however, that will by itself render the referrals uninteresting at the Justice Department—at least as regards Trump. In any event, criminal referrals on matters already under investigation at the department are more like press releases than something the department takes seriously. They may be particularly sophisticated press releases in this case, but they carry no legal significance, and they likely carry no factual significance either.
There are two important exceptions to this, however. The first is the referrals related to the behavior of witnesses in their interactions with the committee. The committee devotes a section describing efforts on the part of Trump and his entourage to tamper with committee witnesses. Such referrals are not mere press releases, as they involve potential criminal acts of which the committee is in a position to make the department aware. In these situations, the committee is not simply an investigator referring findings to a different investigator who already presumably knows about the conduct at issue. It is a possible crime victim referring to the Justice Department conduct about which the department has no reason to be aware.
The most interesting set of referrals, in my view, don’t involve the Justice Department at all. These are the referrals to the House Ethics Committee of members of Congress who defied subpoenas. The significance of these referrals lies in the fact that, unlike the Justice Department, which is already investigating the questions the committee has referred, the Ethics Committee probably has not on its own launched an investigation of the members who flipped off the Jan. 6 committee when it demanded testimony.
These referrals kind of force the issue. It’s hard for me to see how a complaint from a congressional committee about a member’s behavior with respect to that committee does not trigger an investigation. And that’s useful not because the Ethics Committee is an especially robust institution that’s likely to deal appropriately with members—including incoming presumptive House Speaker Kevin McCarthy—who engaged in contumacious behavior with respect to the investigation. It isn’t. And it probably won’t.
It’s useful because it may force the Ethics Committee, which issues subpoenas of its own to members under investigation, to take a firm stand on the obligation of members faced with document demands from a committee of the House in which they serve—and the available remedies when they refuse to honor those obligations.
The combination of the committee’s storytelling task, both orally over the summer and in writing now, with its giant data dump represents a unique contribution that only a congressional committee can make. Jack Smith can tell the story of Jan. 6 only through indictments, grand jury information being subject to strict secrecy rules. Journalists and historians don’t have the power to compel people to cooperate, to provide documents, or to speak.
The congressional committee, however, is a particularly nimble beast. It can compel witnesses, and it can then release the transcripts and write the story. The combination of the two is an exceptionally powerful instrument of accountability. The hearings served as a waving flag to the general public. The written document and its notes serves as an initial road map to the material, not to mention as a narrative account of its own. Other scholars and lawyers will mine the same material and, over time, construct different narratives out of it. They will create different road maps as well. But the transcripts and the evidence the committee collected really are the investigation.
They are, more than the referrals and in the long run more than the hearings, the investigation’s most lasting legacy.
So here’s my advice when you take up the Jan. 6 committee report: Don’t skip the notes.