Jan. 6 panel’s video depositions become tantalizing tool for probes
Lawmakers can better shape their arguments, while witnesses will recalculate how their answers might later be used
This is the second in a series of reports about the House select committee to investigate the Jan. 6, 2021, attack on the Capitol and how congressional investigations have changed in the aftermath of the panel's work.
In a larger-than-life video shown during the first minutes of the second hearing of the House Jan. 6 select committee, former Attorney General William Barr called claims of election fraud from his onetime boss, former President Donald Trump, “bullshit.”
The expletive’s punch — and its appearance in news headlines — put a spotlight on how clips from videotaped depositions with Barr and other allies of the former president would become one of the committee’s most effective tools to make the public case against Trump.
Congressional experts expect that will change the dynamics of congressional committees this year and beyond. Lawmakers will come around to those technological advancements that grab public attention and allow them to better shape their arguments, and witnesses will recalculate how their answers might later be used at hearings.
“This was the first congressional hearings that really adapted to the way the American people consume media in the 21st century,” former Florida Democratic Rep. Stephanie Murphy, a Jan. 6 committee member, said.
Those depositions may well surface in investigations this Congress, too.
Rep. Thomas Massie, R-Ky., one of the members of a House select subcommittee on “weaponization” of the government, said that panel may pursue some of the video and technological approaches from the Jan. 6 probe.
“In a way they blazed a trail and showed us how to get all this stuff, right?” Massie said. “It was a double-edged sword when they did all that.”
On that big screen, rioters attacked Capitol police officers. Trump made claims of a stolen election. Attorney John Eastman invoked his Fifth Amendment right not to incriminate himself again and again. Ivanka Trump said she believed Barr that there was no fraud in the 2020 election.
Barr told the committee, and the American public, that he played “whack-a-mole” disputing Trump’s claims of fraud in December 2020, and most were “completely bogus and silly and based on complete misinformation.”
Casey Burgat, an assistant professor at George Washington University and the head of the legislative affairs program, said video moments meant a sea change for congressional investigations.
“It's hard to get people to sit down and read through those transcripts. But a picture is worth 1,000 words. That congressional video with these people is worth a million,” Burgat said.
Other committees throughout Congress have experimented with new technology and new ways of sharing information with the public, such as the Select Committee on Economic Disparity and Fairness in Growth premiering a documentary on its findings last year.
But the video clips in the Jan. 6 probe took on a life of their own in media coverage of the hearings. The clips even served as backstop for witnesses when they could not appear at a live hearing.
Before a June hearing, former Trump campaign manager Bill Stepien’s wife went into labor and he could not attend.
Instead of reading from his transcript, the committee projected Stepien’s deposition on the big screen, where he talked about Trump ignoring campaign advisers who said his election fraud claims were false.
“I didn’t think what was happening was necessarily honest or professional at that point in time,” Stepien said on the video — which took off in news coverage of the hearing.
Sandeep Prasanna, a senior associate at Miller & Chevalier and former investigative counsel for the select committee, said the video clips from depositions will be a tantalizing tool for congressional investigators to come.
“After the country saw the hearings and the utility and the power of using video deposition clips, many other committees are going to try to incorporate them into their investigations,” Prasanna said.
Alyssa DaCunha, a partner at WilmerHale and co-chair of the firm’s congressional investigations practice, said that while those video depositions and extensive documents made an impression at the hearings, a lot of work had to be done behind the scenes.
She said there’s typically a “variable” level of preparedness among staff conducting interviews — “sometimes they show up and it’s like they haven’t read anything.”
So committees would have to invest in high-quality staff and give them the time to prepare for those kind of high-stakes interviews.
“If they’re on video they have to do their homework too,” DaCunha said. “That’s a decision that staff and members will have to make.”
Prasanna noted that the video clips the committee used represented just a small fraction of the more than 1,000 interviews that committee staff conducted over the course of more than a year.
After the committee investigation ended, the panel released more than 2,000 pages of deposition transcripts, which dwarfed the amount played at the public hearings or quoted in the 800-page final report.
Conducting that kind of investigation is expensive, though. The committee spent nearly as much as any other House panel and employed a staff of almost 50 through its direct hires, detailed employees and contractors.
According to House quarterly disbursement reports, the committee spent almost $14 million in less than 18 months. In 2022, the committee spent more than $11.8 million, among the most of any congressional committee.
In the more than two months since Republicans took control of the House chamber, they have held the Jan. 6 committee as an example, at least as far as its budget goes.
Rep. Chip Roy, R-Texas, said on Fox News the “weaponization” subcommittee housed in the House Judiciary Committee would have “the kind of budget, the kind of staffing, at least as much as the Jan. 6 committee, to go after the weaponization of government.”
“So we have more resources, more specificity and more power to go after this recalcitrant Biden administration,” Roy said.
Earlier this month the House Administration Committee voted to give a $22.7 million budget to the House Judiciary Committee for the 118th Congress, an increase from the $16.8 million Democrats provided the Judiciary panel for the 117th Congress.
Additionally, the Administration Committee created an $18 million reserve fund that committees could use — far greater than the $4 million fund Democrats created in 2021.
Even though they require more staff investment, members of the committee and several experts said they don’t think those video interrogations are going anywhere.
Rep. Jamie Raskin, D-Md., a member of the Jan. 6 committee, pointed out that attorneys are already trained to use tools like video depositions and e-discovery software.
“Most of the legal education is designed around teaching lawyers to go work in the judicial branch and before courts, but we use a lot of lawyers too. And these lawyers have the substantive and technical skills to conduct first-class investigations,” Raskin said.
Raskin said the committee made a conscious effort to present testimony from Republicans in its hearings. He’s pointed to that as a rebuttal to attacks that the committee was a Democratic witch hunt.
“It may seem partisan because the overwhelming majority of witnesses were Republicans from the Trump administration, the Trump White House and the Trump family, but in fact there were some Democrats involved,” Raskin said.
Former Rep. Adam Kinzinger of Illinois, one of the committee’s two Republican members, said the video depositions “were huge” in taking the air out of criticisms that the probe was one-sided.
“It was unfair but there was a criticism that this was a partisan witch hunt,” Kinzinger said. “Many of these people were still out there selling Donald Trump, but then getting them in front of the camera and getting them to sell him out by telling the truth, really mattered.”
Those same video interviews may make the already-daunting prospect of testifying before Congress more intimidating though.
Burgat said the use of video depositions adds more risk for a witness appearing before a committee — they never know when a verbal flub or long pause could attain new meaning on prime-time television.
“Just because it's a private deposition doesn't mean it won't ultimately then become public with their video testimony. And so that's going to be a huge calculus change for people questioning whether they want to appear before a committee at all, even under subpoena,” Burgat said.
Prasanna noted during the investigation that some witnesses were reluctant to speak to investigators, and “that was even before it was clear that some of those clips may be used in a hearing.”
“Now that the country has seen and Congress has seen the power of video testimony, I think it may make it more challenging for congressional committees to negotiate with witnesses or set the terms of interview or deposition and that may be a new factor in negotiations,” Prasanna said.