VIRGINIA BEACH, VA - SEPTEMBER 06:  Republican presidential nominee Donald Trump pauses during a campaign event September 6, 2016 in Virginia Beach, Virginia. Trump participated in a discussion with retired Army Lieutenant General Michael Flynn.  (Photo by Alex Wong/Getty Images)
Will Trump's 'executive privilege' claim work or just delay insurrection probe?
02:57 - Source: CNN

Editor’s Note: Christine Todd Whitman is a former governor of New Jersey and Administrator of the Environmental Protection Agency under George W. Bush. Norman Eisen, a former ambassador to the Czech Republic and special counsel to former President Barack Obama on ethics, was special impeachment counsel to House Judiciary Committee Democrats in 2019-2020. Joanna Lydgate is the former chief deputy attorney general for the state of Massachusetts. Todd Whitman and Eisen serve as co-chairs to the States United Democracy Center (@StatesUnited) and Lydgate is the CEO. The opinions expressed in this commentary are those of the authors. View more opinion articles on CNN.

CNN  — 

With the anniversary of the January 6 insurrection upon us, we still do not know the full truth about the events that transpired on and led up to that day. While there has been progress toward accountability – among other things, we at the States United Democracy Center recently filed a lawsuit on behalf of the District of Columbia against the Proud Boys and other conspirators who invaded the Capitol – overall our democracy may be even more vulnerable than last year.

That’s why the January 6 House Select Committee is right to plan bipartisan hearings and an interim report release by this summer. The sooner that happens, the better – and the less bogged down it will be in midterm politics.

That’s not to say the pace of the investigation has been lacking. Those who have been critical of Congress on that front neglect the reality of good investigations – that they are shaped like a pyramid. At the bottom, investigators gather vast amounts of information through tactics ranging from informal interviews to on-the-record depositions to document subpoenas. Next, all that information is narrowed and focused through hearings, where key facts are winnowed down, and hypotheses are tested. Finally, the investigators issue a report or reports, laying out a clear fact-based narrative and presenting conclusions and proposals for fixes.

We are now substantially through the first phase of the committee’s thorough investigation. The committee has received thousands of documents and interviewed more than 300 witnesses.

We know more about the terrible events leading up to January 6, including the January 5 “war room” at the Willard Hotel, where Trump loyalists like Steve Bannon and Rudy Giuliani planned to overturn the legitimate election outcome. We know more about the Trump campaign’s extensive outreach to state representatives asking them to appoint phony slates of “alternate” electors. We know that, on January 6, the defeated president and his team watched the violence and chaos at the Capitol for more than three hours, fielding desperate requests for help, without former President Donald Trump speaking out.

When witnesses have refused to cooperate in that first fact-gathering phase, Congress has pushed back hard, referring Bannon and former White House Chief of Staff Mark Meadows to the Department of Justice for their flagrantly contemptuous refusal to cooperate. After surrendering on contempt charges, Bannon likened the charges to a witch hunt; Meadows, on the other hand, has claimed that executive privilege shields him from testifying. And when Trump interposed a meritless executive privilege argument in an attempt to hide his administration’s records, the committee litigated fiercely and quickly – winning at the district court and appellate levels in just three months, and now asking for an expedited decision at the Supreme Court.

As the committee’s investigation moves into its next major chapter, those Trump administration documents will be needed for hearings, which we can logically expect to begin as soon as the first quarter of this year if a report is to be issued by summer. The hearings will be critically important for sharpening the committee’s own investigation, and for focusing the country’s attention on the truth. We’ve seen that many times before – from Watergate hearings, to Iran-Contra, to the first Trump impeachment.

Then will come the third phase: the reports. The interim report is planned to follow early this summer, with a final one to follow later. The committee’s timing reflects the reality that the closer we get to the November midterms, the more politicized will be the perception of their every act. The bipartisanship of the committee’s operations is critical for the legitimacy of their work, and they likely recognize that issuing a report before the kickoff of the fall campaign season will continue that record.

Above all, we need to know more about why Trump failed to quell the insurrection for so long after the Capitol was breached. The report’s fact-finding on that and many other issues will be critical to helping the American people understand the truth about January 6 and to help leaders at all levels of government take action to prevent another insurrection. While just over a majority of Republicans in a recent CBS poll said that the criminal invasion of the Capitol was appropriately characterized as “defending freedom,” there is an opening for the truth: According to an NPR/PBS NewsHour/Marist poll, 62% of Americans, and even 29% of Republicans, believe the investigation is appropriate. Bipartisan leaders in Congress, and the state and local officials who oversee our elections, have been fighting the “Big Lie” for more than a year. They are demanding action from all levels of government, and timely interim truth-telling can help.

But the committee must not stop there. Once it finds the facts, it should consider their significance in light of the law. Part of that is looking forward and recommending new legislation to prevent anything like January 6 from ever occurring again. And the other equally important part is looking back and making criminal referrals to federal and state prosecutors if the evidence supports it.

There’s a long and bipartisan history of such referrals. The committee’s interim report should detail all potential violations and ask prosecutors to investigate. After all, the potential for prosecution is also an important part of accountability.

We disagree with people who – in the name of the appearance of nonpartisanship – urge Congress to stay away from criminal referrals. Congress was one of the victims of the January 6 attack, and like any victim it has the prerogative – and, here, the responsibility – to tell law enforcement what happened.

There’s plenty of reason to believe that plotters against our democracy may have violated federal law. Among other applicable provisions, Committee Vice Chair Liz Cheney, a Wyoming Republican, has pointed to 18 USC 1512, which prohibits conspiracies to “corruptly… obstruct” official proceedings. And a (Trump-appointed) federal judge has already held that Congress’ January 6 electoral votes count was indeed an official proceeding under the statute.

Local and state prosecutors also may be looking to the January 6 report for insight into the plotters’ various efforts to disrupt and steal elections. Fani Willis, the district attorney in Georgia’s Fulton County, has announced an investigation into Trump’s alleged attempt to interfere with the election in Georgia – including his call asking Secretary of State Brad Raffensperger to just “find 11,780 votes” that did not exist to swing the state. The committee’s investigation may well provide Willis with more information on Trump and his associates – and, in fact, we know that Fulton prosecutors are already communicating with committee staff. Trump denies all wrongdoing.

Nor is Georgia necessarily the only state where Trump and his allies sought to improperly influence election officials and obstruct vote-counting. For instance: In November of 2020, Trump summoned Michigan legislators to the White House in an attempt to convince them to override Biden’s approximately 154,000 vote win in the state. The committee may have evidence about that remarkably brazen overreach – or evidence of soliciting election fraud in other states.

Once the interim report is out, any referrals will be in the hands of federal, state and local prosecutors. A referral isn’t a command, of course – prosecutors must still conduct independent investigations and make their own determinations about whether to prosecute. For careful prosecutors, like US Attorney General Merrick Garland, that independent investigation takes time, which is why referrals should be made sooner rather than later.

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    We understand the impatience with Garland in some quarters, but his deliberate approach makes sense. He has lowered the political temperature at the Justice Department and restored order. He is investigating hot-button issues with care – letting the committee do its work, and then picking up the threads and following where they lead. We are confident that he will take any referrals seriously, and we think his handling of the Bannon case proves it. Bannon was indicted for contempt of Congress in November.

    One year out from January 6, we are finally approaching clarity about what Trump and his allies were willing to do to steal an election. But we need more information and more accountability. The interim report can’t come soon enough.