Lawfare posted this article yesterday. There is a lot more to the article than this, so you should read the whole thing. But this speculation at the end was the part that most interested me.
So will the committee’s brief actually trigger a Justice Department investigation? The answer to that question is not entirely clear. To be sure, the committee’s opinion has unparalleled weight. McQuade has tremendous credibility as an outside observer writing in a serious publication, and as we noted above, the allegations from the committee are similar to the ones she made. But the House Select Committee is the definitive legislative authority on this subject, and unlike McQuade, it is making these allegations after having interviewed more than 500 witnesses and collected 63,000 documents. What’s more, the evidence it is putting forward, it claims, is only a fraction of the relevant material it has collected, and it has already submitted additional exhibits under seal, according to the court record. While the committee has not made a formal criminal referral, one would expect that when a serious, bipartisan congressional investigation represents to a federal court that it has a pile of non-public evidence adequate to overcome a claim of attorney-client privilege because of the crime-fraud exception, the FBI’s ears prick up.
Politically, the filing is already adding urgency to the chorus of voices wondering: Where’s Merrick Garland? That will surely continue.
Of course, the answer to that question—as we’ve dutifully and repeatedly noted–might be that the Justice Department or FBI is already quietly investigating these charges (or similar ones) and never needed any prodding from anyone.
If that’s the case, then the department is certainly showing extraordinary—even admirable—stealth. At a minimum, we can say with confidence that an investigation, if it has been opened, has not taken the kind of overt investigative steps that make news. The press is aware of no witnesses or documents that have been subpoenaed nor of any search warrants that have been executed. If such an investigation exists, it remains at a relatively preliminary stage.
There are, in our view, more likely possibilities. Perhaps the most likely is that the Justice Department and FBI have long been aware of the legal arguments the committee is making and the gist of the factual allegations that the committee martialed in this brief, and has simply decided to hold off commencing a criminal probe for discretionary reasons. Another possibility, more remote, is that the department has studied the legal argument the committee is making and has, for some reason, concluded as a matter of law that it would or could never bring a such a case—and thus that it should not conduct a criminal investigation of a former president based on this theory. Such a posture would, in our view, require an explanation.
Even if the Justice Department has already considered the matter and decided not to open a case, though, the steady drip, drip, drip of incriminating evidence and authoritative voices demanding action could eventually change the bureau’s calculus.
Eventually, it either has to look at this matter or explain why it is not doing so.
Most of us have long believed (feared?) that Trump would never face criminal charges. Have the recent developments with the Jan 6 committee changed your mind? Or at least given you hope?