For the past year or so, the Justice Department and the House select committee on Jan. 6 have largely managed to avoid interfering with each other, even though both have been driving hard and fast over the same terrain in pursuit of the facts about the mob attack on the Capitol last year and what led to it.
But in recent days, in a sign of mounting tension, the parallel inquiries have bumped into each other as defense lawyers and prosecutors in one of the most prominent criminal cases — the Proud Boys sedition case — reached a rare point of agreement: that the committee’s efforts are causing headaches to the normal course of orderly prosecution.
At a hearing on Wednesday in Federal District Court in Washington, the two opposing sides joined forces in asking a judge to put some breathing room between the case and the committee’s work, and delay the marquee trial that was supposed to start in August.
Judge Timothy J. Kelly ultimately granted the request, saying that the Proud Boys trial will now begin in December. As part of his ruling, Judge Kelly noted the committee’s role in the delay.
“Every party before me believes the trial should be continued for reasons of the activities of the Jan. 6 committee,” Judge Kelly said. He pointed out that even though one of the Proud Boys defendants — Enrique Tarrio, the group’s former leader — opposed the delay, pushing back the trial was “the first thing that all of the parties in this case have agreed on.”
It was perhaps inevitable that tensions would arise between the two investigations that are being conducted at the same time, along similar lines of inquiry, by separate branches of the government.
The Justice Department has been wrangling in recent weeks with the committee over access to transcripts of interviews the House panel has conducted, with the committee signaling that it could begin sharing some material with federal prosecutors next month while withholding other material until its inquiry wraps up in September.
But the Proud Boys case is the first of more than 820 criminal matters connected to the Capitol attack in which the competing interests of the House committee and the Justice Department have become a legal issue.
From the start, the two investigations have had different purposes and have been guided by different rules.
By the panel’s own account, the committee’s inquiry was intended to explore as fully as possible the roots of the violence at the Capitol, and it is ultimately meant to propose legislation to prevent something similar from happening again. Its investigators have been graced with a relatively free hand to subpoena records and witnesses even though dozens of people — particularly those close to former President Donald J. Trump — have refused to comply with its demands.
The Justice Department, by contrast, has a narrower if potentially more consequential goal in mind: to figure out if anyone connected to the Capitol attack or to Mr. Trump’s various efforts to subvert the election should be charged with federal crimes. Its investigators are bound by rules that require high standards of proof to be met even before they can start collecting evidence.
The problems in the Proud Boys case began this month, immediately after prosecutors filed seditious conspiracy charges against five top members of the far-right group. The charges came at a highly fraught moment: just three days before the House committee held its widely anticipated first public hearing.
Given that the hearing focused closely on the Proud Boys’ role in the Capitol attack, lawyers for the group became enraged, promptly claiming in court hearings and papers that the Justice Department had colluded with the committee to heighten attention for its findings.
“No objective observer would deny the reasonability of the inference that the filing of the sedition charges was timed to coincide with the select committee’s prime-time hearing on television concerning the very same subject,” one of the Proud Boys’ lawyers wrote.
The Proud Boys also argued that the widely watched hearings, which have been going on all month and are likely to continue in July, have irreparably biased the jury pool in Washington — or, as one of their lawyers put it in a recent filing, the “good, well-meaning, informed, media-attentive citizenry of the District of Columbia.”
Prosecutors have denied that they coordinated their charges to coincide with the committee’s public hearings and have argued that potential jurors in Washington are no more likely to have watched the televised events than those in Miami or New York.
Still, another sticking point has emerged between the House committee and the Justice Department: the question of when the panel plans to release as many as 1,000 transcripts it has made of interviews conducted with its witnesses.
The committee has suggested that it will make the transcripts public as early as July, after originally saying they might be released in September. But both of these dates upset the Proud Boys’ lawyers who, before Wednesday’s hearing, told Judge Kelly they were concerned about the transcripts coming out and biasing a jury near their trial.
The lawyers have also worried that there might be new details about their clients in the transcripts that could further inflame a jury or damage their defenses. At least two Proud Boys connected to the criminal proceeding gave interviews to the committee: Mr. Tarrio, who has been charged with seditious conspiracy, and Jeremy Bertino, who is mentioned in court filings but for the moment is uncharged.
The government, for its own reasons, has also worried about what the transcripts might contain, and last week prosecutors filed court papers in the Proud Boys’ case that included a letter that the Justice Department had sent to the committee’s staff.
In the two-page letter, department officials accused the panel of hampering both future criminal cases and cases that were already underway by refusing to share the transcripts. The officials said they were particularly worried that by withholding the transcripts, the committee was making it more difficult for prosecutors to gauge the credibility of witnesses who may have both spoken to the panel and secretly appeared before a grand jury.
Source: NY Times