The real reason the DOJ just subpoenaed Congress [updated]

| 5:04 pm EST January 29, 2024
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Update, 5:12pm EST: Punchbowl News is now reporting that the DOJ is investigating one unidentified House member for financial issues. It’s not yet clear if this is the subpoena in question, or if this is a separate story and Jack Smith is indeed investigating Congress. Original story follows.

All along it’s felt like Special Counsel Jack Smith was looking to swiftly bring some criminal cases solely against Donald Trump in order to ensure that he faced trial before the 2024 election, while pushing his most high profile co-defendants aside for later. For instance, when Smith indicted Trump for the fake elector scheme, Smith listed six co-conspirators alongside Trump, but to date hasn’t indicted any of them. Strategically, this makes sense. If Smith is looking to get Trump to trial as quickly as possible, that could become complicated if he has co-defendants like Rudy Giuliani or Sidney Powell making nonsense filings in that same case. By indicting Trump alone, it’s more of a straight shot to trial. The others will presumably get indicted later.

With this pattern in mind, there have been endless questions about when or whether Jack Smith might end up criminally targeting members of Congress. There’s no doubt that some House and Senate Republicans engaged in a criminal conspiracy in relation to January 6th. But as I’ve long spelled out, most of these would be iffy criminal cases. No jury is going to convict a member of Congress for merely pumping their fist at a crowd, or for merely voting against certifying the election. There would have to be proof that specific members of Congress engaged in advance in a conspiracy to incite the attack. We have no way of knowing if such proof exists, because it would come down to records being subpoenaed and such. And we still haven’t known when or if Jack Smith might go that route. Until now.

Today it was announced that the House Sergeant-at-Arms has been subpoenaed for documents by the Department of Justice. You can watch the full announcement here for context:

Note that Jack Smith isn’t mentioned. Nor is January 6th mentioned. This could theoretically be about anything. But realistically speaking, if this were an investigation into just one member of Congress for bank fraud or something, it wouldn’t be going this route. This is almost certainly Jack Smith’s grand jury subpoenaing documents that connect Congress to January 6th.

Now comes the much more difficult question. Is Jack Smith doing this because he’s moving on to a stage of his probe where he’s criminally investigating members of Congress? Or is Jack Smith doing this because he’s looking to bring additional charges against Donald Trump?

Here’s one thing to keep in mind. While Jack Smith long ago criminally charged Donald Trump for the fake elector scheme (to the point that it’s set to come to trial this spring), Smith never did directly charge Trump for inciting the January 6th attack. It’s possible that Smith is now circling back to make this happen. In such case there would be the question of whether Smith would once again be solely indicting Trump, or whether this new Trump case would include co-defendants.

Given that this subpoena is being sent right now in January 2024, and now much time would take place between this subpoena and any new criminal charges that might result from it, it’s hard to imagine any of this resulting in a criminal trial before the 2024 election. So this feels like it could be something that’s designed to take place after 2024. Perhaps Smith’s plan is that once he takes Trump down in his solo trial, he’ll circle back and clean up the entire mess.

Or, like I said, this could easily still be entirely about taking Trump down by himself. For now the big story is that Jack Smith is far from done with his investigating. That in turns suggests that Jack Smith is far from done bringing criminal indictments. Buckle up.