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What comes after the final Jan. 6 report could be a question of not just law, but also politics


The House Select Committee investigating the January 6 attack on the U.S. Capitol released its final report this past Thursday. And the big top line is that former President Donald Trump should be prosecuted by the Department of Justice on four charges, including obstruction of an official proceeding and conspiracy to defraud the U.S. by assisting those involved in an insurrection. The report is thorough. It's more than 800 pages, and it offers suggestions for how to protect the American democratic system from possible interference in the future. But whatever action comes next could be a question of not just the law, but also politics, like will the DOJ actually pursue charges against the former president, who is currently running for office again, or will they pass to avoid the appearance of partisanship? And does the appointment of special counsel Jack Smith change that calculus at all? Here to help us think this through is Harry Litman. He's the former deputy assistant attorney general at the Department of Justice, and he currently hosts the "Talking Feds" podcast. Harry Litman, welcome back to ALL THINGS CONSIDERED.

HARRY LITMAN: Thanks. Very good to be here. Merry Christmas to everyone.

LIMBONG: Yeah. Merry Christmas to you, too. All right, so you've had a couple days to digest the report right now. For those of us who haven't had a chance to get through all 800 pages, you know, or so, is there something in particular that sticks out to you from this report that we didn't, you know, necessarily get from the multiple hearings the committee held?

LITMAN: So a few things that really struck me. First - the length of the overall conspiracy. So it's clear from the report that before the election, they had decided on the big lie strategy. And you have some very vivid and profane quotes from Roger Stone and Steve Bannon. F it, we're just going to say we won and, you know, screw you - that's before, even, the election. And then after, there's part, really, of the conspiracy that has to be considered - the fundraising that Trump did off it, where it turns out that was kind of a big grift, as the report says. He mainly used the money for himself. So that was one thing that really struck me.

Another thing that really struck me is the breadth of the contacts. We knew about the strongarm call to Brad Raffensperger in Georgia. It turns out there were about 200 of these contacts with state officials and phony electors, many from Trump himself. That really drove home the kind of magnitude that I hadn't realized from just seeing the committee hearings. And then there are, you know, a few dozen of little stray snippets and startling facts that also came through, but those were this kind of top-line, new revelations to me.

LIMBONG: I know you can't speak for anyone at the Department of Justice, but given what you know about the department and its attorney general, Merrick Garland, how do you think he's approaching this, you know, in regards to the criminal charges recommended by the committee? You know, it seems to be just as much a question about politics as much as it is law, right?

LITMAN: No. You know, it's really true. I've worked with him shoulder-to-shoulder. He will filter out the politics. He is filtering out the politics. It'll be about the facts and the law. Maybe - maybe - at the end of the day, after a decision's been reached, there's some room for consideration of politics, but not in a crass way, but, you know, best interests of the country. But I'm very confident that - and this is especially true of Jack Smith, who has an extra layer of political insulation - but they will do their darndest, and I think successfully, to just go on facts and the law, one foot in front of the other, the sort of same approach DOJ would take to any case, even though this is arguably the most extraordinary set of cases in DOJ history.

LIMBONG: Yeah, I was going to ask, how did adding the special counsel change anything?

LITMAN: First and foremost, and this goes to what I was just saying, it was a legal requirement. So it wasn't simply Garland saying, oh, this could be a good idea. There's a regulation for when you appoint it and, in his view - and you can understand it - it was triggered when Trump became a candidate. That really did complicate the whole formula and made it look like their extraordinary circumstances may be a conflict of interest because you're prosecuting or investigating the guy who's running against your boss. And so that's - you know, first and foremost, for him and the department, it was required under law, but it changed things because the special counsel is designed - when you have a politically-fraught situation, as you surely do here - to give some measure of extra assurance to the public that everything really is on the up-and-up and politics aren't driving the decision.

LIMBONG: So what are you going to be paying attention to in the coming weeks? You know, especially as there's about to be a change to take place in the makeup of Congress.

LITMAN: It's really more the coming months, I have to say. The January 6 cases are still really complicated. There's all kinds of evidence for the department now to try to develop and even sort of, you know, filter and process from Congress, try to get other people to cooperate. But it's a - it really is. People need to, you know, understand no charges are going to be filed there any time soon. Then finally, it seems to me the air is leaking out of the tires on the whole big lie. We had the midterms pass with just one person, Kari Lake, really doing the old refrain, and she definitively lost. Is it really going to happen when the Congress turns to Republican control, that they're going to be pressing this button again and again and again?

You know, it doesn't seem to me to be in their political interest. It's - it also seems to me as if Donald Trump's stock is, you know - it hasn't plunged, but it's waning. Of course, he's still a serious candidate. But I'm looking, as a citizen and just an observer, to see how much the Republican House will really try to make a big deal of the big lie and the kinds of charges against the January 6 committee or the whole investigations in DOJ and Georgia that at least they were doing as of a few months ago.

LIMBONG: That was Harry Litman. He's the former deputy assistant attorney general at the Department of Justice, and he's the host and executive producer of the "Talking Feds" podcast. Harry Litman, thanks a lot for sharing your insights with us.

LITMAN: Really good to be here. Thank you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

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