Here's how the Jan. 6 committee couldn't prove one piece of a conspiracy but the DOJ could: legal expert

The final report from the House Select Committee investigating the Jan. 6 attack on Congress and the attempt to overturn the 2020 election might be readable, but nested in the text are footnotes that resulted in dozens of pages information, some of which were previously unknown to the public.

National security lawyer Ben Wittes, who writes for Lawfare and is a fellow at the Brookings Institute, collected the details from the report for the Washington Post that he believes explains "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."

The first detail not previously known comes from Chapter 4, note 205, revealing a brief Justice Department lawyer named Kenneth Klukowski, who was on hand at the time that former official Jeffrey Clark was coordinating with Donald Trump's legal team. In fact, Klukowski was moonlighting on the Trump legal team while also working at the Justice Department. He penned the Dec. 28, 2020, letter to Georgia state officials.

The committee explained they couldn't figure out if it was John Eastman coordinating with Trump's lawyers to get rid of the DOJ leadership so Clark could take over.

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"The extent to which Clark directly coordinated his actions with the Trump Campaign and its outside advisors is unclear,” the report says, because Clark refused to answer questions, claiming the Fifth Amendment right against self-incrimination. What the committee did find out, however, is “that Clark and John Eastman were in communication throughout this period,” cited Wittes.

The coordination would mean the men were involved in a conspiracy, which explains why someone wouldn't want to incriminate themselves under oath.

Note 205, he continued, talks about the reasons that they couldn't get further information that Eastman and Clark may have been working together. Even when it comes to the fake electors' plot, there was some evidence that Clark tried to get the DOJ to legitimize them. It has already been revealed by former Attorney General Bill Barr that Trump tried to convince the DOJ to step in and declare the 2020 election was fraudulent.

DOJ officials were encouraged to call the 2020 election "corrupt" and "leave the rest to me," Trump said.

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Note 205 says: “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.”

It goes on to cite the example that Dec. 9, 2020, before Klukowski joined the DOJ he sent an email to Eastman with draft talking points to send to state legislators about ignoring the election results and pushing the fake electors instead. The talking points were spreading among conservatives like Eastman, Mark Meadows and others.

“During his deposition with the Select Committee,” the footnote says, “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.”

After Klukowski joined the DOJ, he got an email along with Eastman and Rep. Louie Gohmert's chief of staff and others on Dec. 28, 2020. The subject was: "VP Briefing on 1/6/21 Meeting." Edward Corrigan, previously at the Heritage Foundation, who now runs the Conservative Partnership Institute, which is a kind of tea party think tank started by former U.S. Sen. Jim DeMint (R-SC). Klukowski told the committee he had no part of the briefing, but "Eastman did."

Note 204 in Chapter 4 shows five calls between Eastman and Clark from Jan. 1, 2021 to Jan. 8, 2021. Note 287 cites direct phone contact with Klukowski and Eastman too.

“The Committee has learned that their communications included at least four known calls between December 22, 2020, and January 2, 2021," it reads.

“Although Klukowski told the Select Committee that the Trump Campaign was his client before joining DOJ,” the committee says. “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.”

According to Wittes, the Justice Department has the power to hack through some of the Fifth Amendment claims, Wittes explained.

The DOJ could give immunity to some of the witnesses that worked with John Eastman and Ken Klukowski to uncover the extent to which Donald Trump's allies were working together to figure out an alternative to keep him in the White House.

The House Select Committee investigating the 2020 conspiracy tried to eliminate privilege concerns with John Eastman, but when it came to Ken Klukowski, it didn't. Wittes thinks they let him get away but noted the DOJ doesn't have to.

Read the full assessment in Wittes details for the Washington Post.