Top Jan. 6 committee investigator rips Tucker Carlson: 'Flat-out wrong'

Hello, Deadline: Legal Blog readers! I had the chance Wednesday to interview Tim Heaphy, who was the lead investigator for the House Jan. 6 committee. He weighed in on the unfolding controversy at Fox News surrounding its deceptive coverage of the 2020 election and Jan. 6, as well as the proper timeline for a potential Donald Trump prosecution, and more.

The interview has been edited for length and clarity.

Jordan Rubin: Let's get right into it. Presumably, you’ve heard about Speaker Kevin McCarthy sharing hours of exclusive Jan. 6 footage with Tucker Carlson at Fox News. What's your reaction to that and to Tucker’s framing of the footage?

Tim Heaphy: So first and foremost, I am not someone who has much political experience. I’ve never really worked on a congressional matter before the Jan. 6 investigation, so I’m going to leave it to others to game out McCarthy’s motivations or whether this was part of some kind of deal — I don’t have any idea about that.

What I can say is that when I heard about this, it bothered me because that is really close-hold and sensitive information. When we got access to that footage, we had a dedicated terminal. It was only accessible to a couple of staff. It was password-protected. And we then had to go through the Capitol Police before we were able to publicly show any of the footage. They are very concerned about the locations of the camera coverage of the complex getting out. This is part of their proprietary information that helps them keep the Capitol safe.

So there are times where we would go to them and say, "Hey, we want to use, you know, this chunk of footage," and they’d say, "Well, can you zoom in on this?" or, "Can you stop it here?" because it would show an evacuation route or it would show really clearly where the camera was embedded. And we worked with them. We had that kind of arrangement.

I’ve read that they [Carlson's team] said they ran some of the footage by Capitol Police and maybe took steps to blur some stuff. But I don’t know that that applies to all of it. So I don’t know if they have the same protections as we agreed to with the committee. 

So then the second part of your question is the use of it. I mean, it is predictably being misused in my view. It’s easy to take snippets from one particular location at one particular time and draw broad conclusions. This narrative that this was largely a peaceful protest with people waving flags and taking smiling selfies is just wrong. Flat-out wrong. There were people there who were not assaulting police officers. That’s right. But everybody who was in the Capitol was committing a crime, first of all. Not hitting a cop doesn’t mean that you’re not guilty of a crime. It’s trespassing.

JR: I feel like it’s almost impossible to talk about this Tucker Carlson/Jan. 6 footage issue without also acknowledging the Dominion defamation suit. I’m wondering what your thoughts are as you’ve been watching this suit unfold?

TH: We developed a lot of evidence that people — the president himself and others — were told repeatedly there’s no evidence of election fraud. We’ve looked at the allegations of suitcases of ballots in Fulton County. We’ve looked at the report in Michigan. We’ve looked at the accuracy of the tabulation of the voting machines. And there is no evidence. He [Trump] was told that repeatedly. And by the time of these text messages [referenced in the Dominion filings], it was plain to the Fox News hosts that there was no reliable evidence of election fraud sufficient to overturn the election.

Let me just say, first of all, there are always isolated instances of voter fraud. That happens in every election. But they’re very, very discrete, and there was no evidence here that they were anywhere close to impacting the result of any particular state in the presidential election. And not surprisingly, Fox News hosts — who are smart people, who are informed — see that and they admit that to each other. The fact that they continued to repeat the narrative just like the president did, just like the president’s increasingly desperate legal team did, is outrageous. They were perpetrating a big lie.

Now we can speculate as to motives for that. Is it a financial motivation? The president continued to repeat the big lie because he wants to raise money, wants to continue to send fundraising emails alleging that the election was stolen so that people will give money to the Save America PAC? Is it desire to stay in power for Fox? Is it the desire for ratings? I don’t know. Again, those are political judgments that are a bit beyond my mandate as an investigator. All I can say is, there’s lots of evidence of people knowing that what they were saying was inaccurate.

[Fox News has denied any wrongdoing with regard to Dominion's defamation claims and is vigorously contesting the company's lawsuit.]

JR: Switching gears to the DOJ's Jan. 6 investigation. I’m wondering, do you think the prosecutors need a deadline? And if they do, what would your deadline be, given the reality of Trump having declared for the 2024 election?

TH: The sooner the better, I guess would be the answer. You don’t want an arbitrary deadline. That means that you miss things that are crucial before you bring the case. That said, you don’t want this to spin out indefinitely. But we did have a deadline [on the Jan. 6 committee], and in some ways that was really useful, because it allowed us to really focus and to prioritize, and to say to witnesses, "Look, we need you to make a decision and get in quickly because we are running out of time."

I think DOJ is mindful of the traditional department policy that you don’t want to bring charges that may impact an election and therefore they need to be brought well in advance of the 2024 election if they are implicating a candidate for president.

So I expect it sometime in the next four to six months. Ideally, they bring a case sometime this spring or summer. If it goes into the fall, then you’re starting to be into primary season and getting closer to an election — and of course, once a charge is brought, there’s a lot that happens before the trial and the matter is adjudicated.

So they need to bring it soon enough for that ideally to run its course well before the 2024 election. And look, what they’re doing now, it really seems like the end stage because of the subpoena to former Vice President [Mike Pence], to the president’s daughter and son-in-law. They’re pretty close now, it seems to me, to the most important witnesses, so I think that they are likely close to the end.

JR: We have to be talking at least a year from a potential Trump indictment until a trial, right?

TH: Yeah, maybe, but I don’t know. I think it’s really hard to predict what the former president will do here. There are times when criminal defendants want a speedy trial. And given that trials are public and given the attention paid on this, I wouldn’t be shocked if the former president says, "I’m ready. Give me my day in court." He wants the attention.

When we subpoenaed the former president, the smart money was that he would never come in, and, of course, that’s what happened. But there was also some voice within that said, "Hey, maybe he really will. Maybe he wants the platform and he wants to give us his version." There’s a fair amount of hubris there.

So I have learned over the years: You just really can’t predict what happens with criminal cases, with trials. Sometimes they go really slowly. Sometimes they go fast. There are curveballs that happen all the time. I don’t know. I mean, you’re right. The standard here would be it would take a year or so. There will be contested pretrial motions type issues. But I won’t be surprised if it goes faster.

JR: And so to close, I don’t know if this is either a hopeful or scary question, but do you think that a future Jan. 6 would be stopped?

TH: I think it’s going to be a lot harder now. I think we have learned from this. The committee made a lot of recommendations, some of which have already been implemented.

And I think, look, I believe that the arc of history bends toward justice, right? Dr. [Martin Luther] King said that and President [Barack] Obama has said that. And I’d like to think that Jan. 6 makes people realize: Hey, democracy is not given — it has to be earned.

You have to engage and participate. And it’s going to generate more positive participation and constructive discussion going forward, so that it will just be less likely to happen in the future. That’s my perhaps naively optimistic hope. But I do think it will practically be more difficult for something like that to happen in the future. And I hope our work has made that outcome happen.