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Former DOJ official Elliot Williams on the Congressional criminal referrals against Trump

AYESHA RASCOE, HOST:

Tomorrow, we expect the House Select Committee investigating January 6 to take up criminal referrals against former President Donald Trump. NPR can report that committee members will vote on at least two charges. Elliot Williams is a former deputy assistant attorney general for legislative affairs and a former counsel to the Senate Judiciary Committee. Elliot Williams, welcome to the program.

ELLIOT WILLIAMS: Hey, Ayesha. Good to talk to you again.

RASCOE: Glad to have you. So the two charges we're confident enough to report on are obstruction of an official congressional proceeding and conspiracy to defraud the United States. Assuming the committee does vote to send them over to the Department of Justice, will the referrals complement or complicate the DOJ's work?

WILLIAMS: Stop. You're both right. I think because it's actually...

RASCOE: (Laughter) OK, OK, OK.

WILLIAMS: ...Both. Look. It complements the proceeding in that Congress is an investigative body. They've issued subpoenas and brought in witnesses. And it's evidence that they're presenting to the Justice Department, some of which the Justice Department may not have seen or uncovered on their own, so that's a good thing from the Justice Department's perspective. The problem for them is that Congress is inherently a political body. It's an elected branch of government even when working at its best, and it injects an element of politics even with their best intentions, but you inject an element of politics when Congress directs the Justice Department or even recommends the Justice Department that it does something. So maybe it creates a little bit of a headache down Pennsylvania Avenue when the Justice Department does get that referral.

RASCOE: The interviews, the material the committee gathered - and it is a whole bunch - is that something that DOJ investigators would treat as part of the legal record, or would they need to or want to recreate it themselves? Would they have to do it all over again?

WILLIAMS: You know, it is the record, but that doesn't mean that it all can be brought into court one day. There are rules governing hearsay and other forms of evidence that, if you're a prosecutor, you can't expect to rely on at trial. Now, certainly it's useful, valuable evidence, and it might both point the Justice Department in the direction of where they should go. But sure, there's some of it that they might be able to use in its raw form, for lack of a better way to put it.

RASCOE: And what can DOJ investigators do that congressional investigators can't? Can they force people to come in and be like, you know, you got to talk to us?

WILLIAMS: (Laughter) Well, the big one's the grand jury.

RASCOE: Yes.

WILLIAMS: It's - the most powerful investigative tool that exists in our government really is the - is a grand jury, and that's run by the Justice Department. Congress can issue subpoenas and compel people to testify. The problem is that they then have to go to court in order to enforce those subpoenas. And as we've seen over the last couple years, a lot of senior White House staff pushed back and even sued to block the issuance of congressional subpoenas. So Justice Department does really have more teeth here, but at the end of the day, we do have to respect Congress as a body that has a right and even an obligation to some extent to carry out investigations on behalf of the American people.

RASCOE: So Jack Smith is the special counsel that Attorney General Merrick Garland appointed last month to handle what the DOJ said were two ongoing investigations. One was into interference following the 2020 election and basically January 6. The other was into classified documents found at Trump's Florida club. Will whatever the committee passes over automatically end up in Smith's lap? Can he add that to his portfolio?

WILLIAMS: Of course he can. I'm sure Jack Smith reads the same newspapers that you and I do and that the members of Congress are looking at, as well, and is well aware of the work they're doing and the kinds of things that they've brought up at hearings. But certainly, you know, the Justice Department can consider anything that's presented to it, subject only to that thing that I talked about a little bit earlier, which is that you got to be able to get it into court to make it usable. Like, it might be interesting or engaging or whatever else, but that doesn't mean they can rely on it when it comes to trial.

RASCOE: You know, the House committee is bipartisan, and because it does include Republicans - not the Republicans that GOP leader Kevin McCarthy wanted to sign to it - but now that Republicans are taking control of the House next month, the committee's days are definitely numbered. Does that affect the work of the Justice Department, make it more urgent? Or will the DOJ move at its own pace?

WILLIAMS: Yeah. Well, of course, the Justice Department will work at its own pace, and it already has. Consider that you've already seen a number of prosecutions and search warrants and people indicted and so on. So, you know, that's not going to affect the pace of the Justice Department. At the end of the day, Congress is a separate branch of government. And whoever's in charge, even if there isn't a January 6 committee, isn't really going to change what the Justice Department's able to do in an investigation.

RASCOE: That's former Deputy Assistant Attorney General Elliot Williams. Thank you so much for speaking with us this morning.

WILLIAMS: Thanks. Have a great weekend. Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.
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