Benjamin Wittes is a co-founder of the legal and national security affairs website Lawfare and a senior fellow in governance studies at the Brookings Institution. His most recent book, “Unmaking the Presidency: Donald Trump’s War on the World’s Most Powerful Office,” was co-authored by Susan Hennessey.
When the House select committee on Jan. 6 published its 800-plus-page report last month, it released a huge trove of underlying material: hundreds of deposition and interview transcripts and documents galore. The report also cites court filings, newspaper articles, public statements and, yes, a great many tweets. Hundreds of thousands of pages all told.
It is rare for a government body to show its work to the extent that the committee has. Normally, footnotes in an investigative report point to interviews readers can’t access. They refer to grand jury transcripts, internal memorandums of interviews and other materials the reader cannot simply click on and search. The Jan. 6 report’s 4,286 endnotes, small print that people so often skip, by contrast, offer a guide to this vast and vital public record.
For nearly a month, I have studied the footnotes and the document they support. Legal scholars, historians and others will analyze this material for years to come, but already some takeaways are clear. Notably, the committee shared not just its interpretation of events and the raw material from which it drew but also used the notes to make thousands of connections between the two. It’s a powerful model for future investigative bodies, one that allows anyone to check the committee’s interpretation of its evidence. It also offers pointers to journalists as to where to find the good stuff in the pile of material just dropped in their laps.
Some notes even help explain why the committee was unable to unravel a key element of the post-election story — and the challenge that lies ahead for special counsel Jack Smith and the Justice Department team working under him.
Consider Note 205 in Chapter 4, which deals with Kenneth Klukowski, a lawyer who served ever so briefly at the Justice Department around the time of the Jan. 6, 2021, insurrection.
In its report, the committee admits that it was unable to discern whether the plot by Justice Department official Jeffrey Clark to depose the department’s leadership and intervene in the presidential election was coordinated with Trump legal advisers such as John Eastman.
The main reason that “the extent to which Clark directly coordinated his actions with the Trump Campaign and its outside advisors is unclear” is that Clark asserted his Fifth Amendment right not to answer questions, and other witnesses also asserted privileges. So while the committee established “that Clark and John Eastman were in communication throughout this period,” it was not able to establish that they were coordinating activity on a shared plan.
Such a shared plan would be key to establishing the kind of broad-ranging conspiracy that many analysts — myself included — suspect was behind the insurrection.
Without a shared plan, the committee has overpowering evidence of what it calls the “fake electors” plan — the plot to get people to cosplay as electors for President Donald Trump in various states and to get state legislators to legitimize them. And it has convincing evidence of a plot by Clark to get the Justice Department to intervene in the election in several states — and, if need be, to install himself as acting attorney general to accomplish this. It has powerful evidence, too, that Trump oversaw both plots and that the plots proceeded according to a suspiciously similar legal theory and that the perpetrators were in touch with each other. But it is unable to show what common sense suggests is obvious: that the two plots proceeded in coordination with one another.
Yet Note 205 and a few others lay out the precise reasons the committee could not close the circle and show how Eastman and Clark were working together — and why the committee is confident they were doing so. By revealing a bit more about what the committee couldn’t get, the notes help explain what the Justice Department will need to do to link the plots.
Clark’s key staffer at the Justice Department was Klukowski, the lawyer who drafted the infamous Dec. 28, 2020, letter to Georgia state officials that Clark proposed to send but that his department superiors quashed. Klukowski had begun working at Justice on Dec. 15, 2020. As a political appointee, his job would end on Jan. 20, 2021. Before going to work for Clark, Klukowski had worked at the Office of Management and Budget and moonlighted as a volunteer lawyer on behalf of Trump’s 2020 campaign in a period beginning just before the election and ending shortly after it.
Note 205 reports: “The Select Committee questioned, and sought documents from, Klukowski about his interactions with Eastman and others related to the 2020 election and the January 6th joint session of Congress.” Klukowski “objected to certain questions, and withheld a number of relevant communications, on the basis of attorney-client privilege, work product, or the First Amendment, including communications that he had with Eastman.”
Helpfully, the note cites an example: “On December 9th, before Klukowski joined the Department of Justice, he sent an email to Eastman with an attachment of draft talking points arguing that state legislators in states where Biden won could disregard the election results and appoint electors for Trump.” Those “talking points were circulated the same day” among a group of conservative activists and lawyers, including Eastman and Mark Meadows, the Trump White House chief of staff. “During his deposition with the Select Committee,” the note reads, “Klukowski said that the document containing the talking points looked like a document he had drafted, but asserted attorney-client privilege when asked certain questions asked about the document.”
The contacts continued even after Klukowski went to work at Justice, the footnote reports, citing “an email sent to [Klukowski], Eastman, Rep. Louis Gohmert’s Chief of Staff, and others on December 28th with the subject line ‘VP Briefing on 1/6/21 Meeting’ and a message from Edward Corrigan that said, ‘I believe the VP and his staff would benefit greatly from a briefing by John and Ken’ but cautioned to ‘make sure we don’t overexpose Ken given his new position.’ ” Klukowski told the committee he didn’t participate in any such briefing, though the committee writes that “Eastman did.”
Other footnotes flesh out the story. Note 204 in Chapter 4 reports that the committee obtained phone records “showing five calls between John Eastman and Jeffrey Clark from January 1, 2021, through January 8, 2021.” And Note 287 of the report’s executive summary recounts that there were direct phone contacts as well between Klukowski and Eastman: “The Committee has learned that their communications included at least four known calls between December 22, 2020, and January 2, 2021.”
The notes make clear the committee had two streams of post-election misconduct — one involving fake electors and pressure on the vice president, and the other involving shenanigans at the Justice Department. The perpetrators of these streams are frequently in touch with each other during the relevant period. And they are making arguments that substantially overlap. Yet the committee can’t breach claims of privilege and show they are actually working together — rather than chatting about, say, barbecue or vacation plans.
These privilege claims might well impede the Justice Department, too. Then again, the department has tools that the committee either could not or would not use.
For example, the department can break through a Fifth Amendment privilege claim by immunizing witnesses. What’s more, media reports indicate that Klukowski is cooperating with the Justice Department, though it’s not entirely clear what this means or if it’s accurate. If the reports are true, in the context of his cooperation, Klukowski might find ways, without breaching privilege, to shed light on Clark’s collusion with Eastman — particularly if Klukowski fears prosecution. Of course, the department has the power to indict people and thereby pressure them to cooperate, though that wouldn’t necessarily obviate all privilege concerns. It also has the power to litigate privilege claims it believes are unmerited. The committee did this successfully with Eastman but appears to have let Klukowski get away with his privilege claims (perhaps because it was working on a tight deadline).
In other words, these footnotes identify more than the challenge the committee faced; they also point to tools the Justice Department might use to succeed where the committee failed.
Throughout his depositions, Klukowski presented himself as a guy just looking to get ahead in his career who ended up at Justice at the tail end of the administration for purely professional reasons. In a comic aside, Note 207 in Chapter 4 outs Klukowski for an attempted professional ruse.
Why go to Justice, committee investigators asked, for only a few weeks? Klukowski said he was “ ‘hopeful’ that he could ‘get as many medals on my chest as possible during that short period of time,’ and ‘given that it was going to cross the New Year’s dateline, [he] figured [his] resume would say Department of Justice 2020 and 2021.’ ” This would enable him to “get into an interview for future jobs before a future employer ‘would find out how few days in each of those calendar years we were actually talking about.’ ”
Sure, he had worked with the coup plotters only a few days earlier and was still cc’ed on some emails, but Klukowski professed himself shocked — shocked! — at their legal arguments, with which he didn’t agree, and he certainly wasn’t helping them. He just wanted to get some litigation experience and do a few oral arguments, he maintained.
The trouble now, of course, is not that future employers might find out how few days Klukowski actually worked in the Justice Department but that the Jan. 6 committee has alleged that his service made up for in dishonor what it lacked in length.
“Although Klukowski told the Select Committee that the Trump Campaign was his client before joining DOJ,” the committee complains in the executive summary’s Note 287, “Klukowski nevertheless helped Clark draft the December 28th letter described in this Report that, if sent, would have encouraged one or more State legislatures to take actions that could have changed the outcome of the 2020 election.”
What’s more, the “Select Committee has concerns about whether Klukowski’s actions at DOJ, and his continued contacts with those working for, or to benefit, the Trump Campaign, may have presented a conflict of interest to the detriment of DOJ’s mission” and about “many of the ‘privilege’ claims Klukowski used to withhold information responsive to his subpoena, as well as concerns about some of his testimony, including his testimony about contacts with, among others John Eastman.”
Most of the report’s footnotes are merely citations — effectively, connective tissue between the document and source material. Some notes allow the committee to comment on its own work, including in such relatively trivial ways as commending Cassidy Hutchinson, the former aide to Meadows. (“The Committee sat for dozens of hours with Hutchinson and concluded that she is brave and earnest, and understood the intense backlash that would inevitably result from those who were enlisted to defend President Trump’s behavior,” reads Note 708 of the executive summary.)
But some of the notes tell stories the committee couldn’t. In the case of note 205, there is a simple message: The committee has done what it can to connect the Eastman and Clark activities, and it clearly believes there’s more to the tale than Klukowski acknowledged. But the committee had too little time and authority to carry this particular ball into the end zone. The Justice Department will need to pick up the ball if the public is to get to the truth.