Editor’s Note: Elie Honig is a CNN senior legal analyst and former federal and state prosecutor, and author of “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department.” The views expressed here are his own. View more opinion on CNN.
The House January 6 Select Committee’s public hearings, which begin Thursday, pose both a moment of opportunity and peril for the committee – and for American democracy, which was attacked nearly a year and a half ago. If the committee presents its findings in a clear and compelling manner, it can remind the public of the danger we faced on that day and the ongoing threat to our democratic institutions. But if the committee falters, then the public might never fully understand the continuing relevance of the January 6 attack, and those responsible might not face meaningful consequences for their actions.
With that in mind, here are five suggestions – borne largely of my experience as a federal and state prosecutor – that the committee ought to consider in crafting its presentation to the American public. Of course, the committee has a different task and different tools than a prosecutor would. But the bottom-line goal is the same: tell the story clearly and credibly, and convince your audience that it matters.
– Let the evidence do the work. Members of Congress love to hear themselves speak. How many times have we seen an important substantive hearing – take the recent confirmation of soon-to-be Justice Ketanji Brown-Jackson, for example – where congressional “questioning” devolved into bloviation, self-promotion and intentional viral-clip-creation? Committee members need to resist this urge.
Dramatic speeches from Reps. Bennie Thompson of Mississippi, Liz Cheney of Wyoming or Pete Aguilar of California are fine, and doubtless good for them in terms of air time and Twitter likes. But ultimately the evidence itself – damning texts, revelatory recordings, graphic videos of the attack and testimony from firsthand witnesses – will hit harder and resonate more powerfully than any speech from any member of Congress ever could.
– Deliver something new. Over the past year, we’ve seen – through the committee’s own letters to witnesses and through well-sourced journalistic scoops – a steady parade of stunning revelations about the conduct of former President Donald Trump, former White House chief of staff Mark Meadows, former Trump lawyer Rudy Giuliani and others before and during the January 6 attack. The good news for the committee is that the public now has a much better sense of how and why the Capitol attack happened, and who bears responsibility for it. The bad news could be that the committee already has revealed some of its most important evidence and may not have much left to garner new headlines.
The committee has announced that it will deliver “previously unseen material.” The question, then, is whether this new information will go to core unresolved issues. Most importantly, we still know relatively little about what Trump was doing and saying inside the White House during the three-plus hours while the Capitol attack was happening. If the committee can flesh this out, and can offer other new revelations, then it should be able to capture and hold broad public attention.
– Focus on the big picture. Well before any rioter stepped foot inside the Capitol, Trump and his allies tried to interfere in the election by filing bogus lawsuits, pressuring state election officials and legislatures to override their popular votes and pressuring then-Vice President Mike Pence to misuse his power and throw the election to Trump. (Trump and his allies deny any wrongdoing.) The committee must drive home this point: Plenty of powerful people never stormed the Capitol but nonetheless are responsible for trying to engineer a coup.
Of course, the hearings should, and surely will, focus heavily on the actual breach of the US Capitol by pro-Trump rioters on the afternoon of January 6. But the story here is even bigger: for months before the attack, Trump, his close advisers, and a group of lawyers and powerful elected officials tried to steal the election, without bloodshed, through fraud. They conjured and spread the “big lie” that Trump had actually won the election, but was denied his rightful victory because of massive voter fraud – entirely without evidence and contrary to the findings of Trump’s own chosen leaders of the Justice Department, Department of Homeland Security and FBI, several of Trump’s own White House lawyers and advisers, and dozens of state and federal judges across the country.
– Get it right. Prosecutors know that if you get even the smallest fact even a little bit wrong in front of the jury, your credibility is compromised. Thus far, the committee’s public assertions have largely been proven out, and they haven’t made many, if any, material mistakes of fact. But, when the big moment draws near, there can be a tendency to over swing a bit, in the adrenaline rush of it all.
Take, for example, the committee’s recent letter to Rep. Barry Loudermilk of Georgia, which asserts that the committee has evidence that “directly contradicts” his denial of an accusation that he gave a tour to visitors on January 5 that was intended to help them break into the Capitol the next day. That’s a dramatic allegation, first made by a Democratic member of Congress over a year ago. Yet, since then, we’ve seen no public evidence to back it up.
The response from Loudermilk has not been mealy-mouthed or equivocal; he has squarely denied the charge, calling for Congress to release all surveillance video. Maybe the committee has ironclad proof to the contrary; we shall see. But if not – if the evidence falls even a bit short of what’s been promised – the committee’s credibility will take a hit.
– Remember the audience. Yes, the primary audience for the hearings will be all of us: the American public. Public opinion matters, and it’s historically necessary that the full history of January 6 be told. But in terms of meaningful accountability, the committee (and Congress more broadly) have essentially no ability to impose consequences on wrongdoers. That task falls to the Justice Department.
We know the Justice Department already has charged over 800 people in connection with January 6 – but, thus far, nobody anywhere near Trump or his inner circle. We also know that the Justice Department is watching what the committee does. Last month, we learned that federal prosecutors had requested access to transcripts of the committee’s witness interviews.
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It’s not ideal from a prosecutorial perspective that the Justice Department is apparently looking to ride the committee’s investigative coattails; typically, prosecutors hold more powerful investigative tools than Congress, and move more quickly. But here, the situation seems to be reversed. In any event, the committee now knows that it’s putting on a presentation not merely to the public but also to federal prosecutors.
This is a moment of truth for the committee. It has done remarkable work over the past year to gather facts about January 6. With the hearings slated to start this week, the challenge is to present that work in a manner that will make the American public, and federal prosecutors, fully understand the magnitude of the attack on our nation’s Capitol – and on our democracy.