One intriguing subplot to the upcoming Jan. 6 select committee hearings is this question — are the former Trump Justice Department officials heroes or villains?
Correct answer: neither.
When the series of hearings begin on Jun. 9, the Committee is reportedly likely to call as witnesses former acting Attorney General Jeffrey Rosen, his deputy, Richard Donoghue, and, maybe, even former Attorney General William Barr. All three of these witnesses have already provided damaging statements against Trump – two of them under oath. But all three men also make imperfect witnesses.
The public and the media should be prepared for how such witnesses figure into investigations of this kind and character, both for this hearing and any subsequent criminal prosecutions.
As every prosecutor knows, you take your witnesses as you find them. Most of them come with some baggage. Being close enough to a wrongdoer to be aware of his misconduct often means that the witnesses have engaged in some wrongdoing themselves. And the men who found themselves in leadership roles at DOJ in the waning days of the Trump administration appear to be no exception.
Let’s start with Rosen and Donoghue.
We have already seen a preview of their testimony in a report by the Senate Judiciary Committee in the fall of last year. Rosen, who served as acting Attorney General after Barr stepped down in December 2020, seems to have performed admirably, mostly. Rosen resisted Trump’s “persistent” efforts to persuade him to discredit the election results even after Barr had announced that there was no widespread fraud that affected the outcome. In addition, Rosen refused to sign a letter drafted by Assistant Attorney General Jeffrey Clark providing a roadmap for states to throw out their election results and let Republican legislatures substitute their own slates of electors. Rosen also thwarted Clark’s efforts to replace him as acting Attorney General to help accomplish Trump’s plan. All that said, in August 2021, Rosen told the Senate investigators that despite Trump’s efforts, “as to the actual issues put to the Justice Department, DOJ consistently acted with integrity, and the rule of law held fast.”
Consistently acted with integrity? Let’s consider that claim more closely.
A skeptic might ask why Rosen and his colleagues failed to come forward with their information before. If Rosen was so convinced that Trump’s requests were improper, why did he apparently sit by during Trump’s second impeachment trial in January 2021 without volunteering this information? Such testimony could have helped Congress determine whether Trump intended to overturn the outcome of the election. Hardly what we think of as acting with “integrity.”
Rosen also testified that “when I and others told the President he was misinformed or wrong or that we would not take various actions to discredit the election’s validity, he acquiesced to the Department’s position.” In fact, of course, when Trump realized that Rosen would not play ball, and facing mass resignations by DOJ lawyers, Trump simply pursued other avenues. But Rosen’s efforts to minimize Trump’s misconduct could be construed as Rosen’s attempt to excuse his own failure to come forward with this information sooner. Rosen’s lapses could, depending in part on how he addresses them now, tend to undermine his credibility at the Jan. 6 Committee hearings.
Or take Donoghue, the acting Deputy Attorney General. Congress received his handwritten notes, indicating that in December, after Rosen rebuffed Trump’s demands to open an investigation, Trump told Rosen to “just say the election was corrupt + leave the rest to me and the R. Congressmen.” Testimony about this conversation is potentially devastating because it suggests Trump had a fraudulent, or corrupt, intent. Even after being told that DOJ would not investigate and did not believe there was any substantial election fraud, Trump continued to press them for a public statement to the contrary. Telling lies is the essence of fraud. What’s more, when Rosen and Donoghue rebuffed Trump on that call, the president immediately threatened to replace the DOJ leadership and put Clark in control of the department.
There is even written corroboration of this episode. On Jan. 3, Associate Deputy Attorney General Eric Hovakimian drafted an announcement of his and Donoghue’s immediate resignation to be sent by email to DOJ leadership if Trump fired Rosen that day. The message recounted the prior week’s events, and described Trump’s motive as “improper”:
“Acting Attorney General Jeff Rosen over the course of the last week repeatedly refused the President’s direct instructions to utilize the Department of Justice’s law enforcement powers for improper ends.”
And yet, with all that, Donoghue, too, sat by while Trump contested his role in the Jan. 6 attack.
Even in his Senate testimony last summer, Donoghue initially defended the Department’s actions in conducting investigations during the election period. Those actions came after Barr, on Nov. 9, 2021, abruptly reversed long-standing DOJ policy which had kept the department out of election investigations until counts are certified so as to avoid legitimizing unproven claims of fraud and influencing outcomes. DOJ’s role is to investigate fraud after the fact for purposes of punishment, not to determine results. That role is left to the states. The policy change caused an uproar within the department — including a written complaint by career prosecutors and the head of election crimes branch to resign in protest — because of the potential for election interference and public perception of inappropriate political involvement by DOJ. Donoghue told the Senate that “the appearance” of election interference “was always a concern, and it was something that we took into consideration. But, for instance, with regard to this, right, we didn’t do anything overtly. It’s not as if we issued grand jury subpoenas or began interviewing witnesses or anything like that” However, Donoghue later admitted that DOJ did conduct overt investigative steps, following Barr’s order to interview witnesses about quickly debunked allegations of fraud occurring at State Farm Arena in Georgia. Donoghue said that, yes, “ultimately, the witnesses who were there were interviewed. I can’t remember if FBI did the 15 interviews alone or they did them in conjunction with State authorities.” Conducting witness interviews are clearly doing something “overtly,” and the contradiction tends to harm Donoghue’s credibility.
The fact that neither of these men came forward with this information at the time or in the context of the impeachment proceedings is a stain on them and their leadership of the department. That they were involved in having the department take over actions during the election period is also not to their credit. In short, their hands are not clean, and their value as witnesses is diminished. These are the kind of contradictions that skilled criminal defense attorneys use on cross-examination to cause juries to view witnesses’ testimony with skepticism.
And then there is Barr himself. Last week, he spoke to the Jan. 6 committee behind closed doors. We know the likely gist of his testimony because he has already shared his story in a book and in interviews to promote it. Committee members are likely to have asked Barr about his resignation in December 2020 after publicly refuting claims of any significant election fraud and refusing to file a lawsuit to contest the election in the Supreme Court. In his book, Barr describes Trump’s cries of a stolen election to be “fact-free claims of fraud.” During a conversation at the White House, Barr has written, he told Trump there was no election fraud, and offered his resignation. According to Barr, Trump slammed his hand on the table and yelled, “Accepted!” This episode is important because it contributes to the evidence of Trump’s knowledge that Joe Biden’s electoral victory was legitimate, and that the only fraud was Trump’s own claim that the election was stolen.
Of course, Barr has more credibility problems than the other two witnesses combined and then some. Among the greatest hits: a court found that Barr’s statements in a letter to Congress about the report of Special Counsel Robert Mueller were “distorted” and “misleading;” Barr issued a statement that former U.S. Attorney for the Southern District of New York Geoffrey Berman was “stepping down” when he was not; Barr said that no “chemical irritant” was used on protestors in Lafayette Park during protests over the death of George Floyd in the summer of 2020 when they, in fact, had been pepper-sprayed; and the list goes on.
Each one of these officials is an important witness in showing that Trump and his close associates attempted to corruptly overturn the election. If a criminal investigation were to culminate in charges, these same witnesses would no doubt be on the prosecution’s witness list. And each one of them would be subject to damaging cross-examination.
The classic example of a witness with baggage was Salvatore “Sammy the Bull” Gravano, whose testimony in a 1992 trial helped convict John Gotti, head of the Gambino crime family in New York. The jury convicted Gotti of murder, racketeering and other charges based, in part, on Gravano’s testimony, despite Gravano’s admission of committing 19 murders. Even though the jury may not have liked Gravano, they believed him.
As any prosecutor can tell you, all cases have bad facts, and there is no perfect witness. Because witnesses who have made conflicting statements or shown biases can be impeached on cross-examination, prosecutors try to obtain corroborating evidence to help bolster their testimony. Investigators might support witness testimony here with the draft email message about the mass resignations, emails between the White House and DOJ, and Donoghue’s notes about their conversations. In addition, consistent facts among multiple witnesses tend to corroborate each other. The fact that Rosen, Donoghue and Barr all tell similar stories helps them ring true. It’s likely that lawyers in Trump’s White House Counsel’s office will add further and consistent testimony to that equation.
The reality is that witnesses are often neither heroes nor villains, or maybe they are a little of both. Prosecutors frequently try to distance themselves from cooperating witnesses, reminding the jury that they didn’t choose the witnesses, the defendant did by associating with them.
But most importantly, the fact that these DOJ officials signed on to be part of the Trump administration bolsters their credibility. It is their very alliance with Trump that makes their testimony all the more damning.