Jan. 6 Facts and Trump’s Malicious Fantasies

Jan6 committee investigative counsel Timothy Heaphy debunks Trump’s “crazy” claims and urges closer FBI monitoring of extremists' social media

“It’s just crazy-town.”

So says Timothy J. Heaphy, who served as chief investigative counsel to the Jan. 6 committee, about President-elect Trump’s comments this week vowing to issue “major pardons” for those convicted of storming the U.S. Capitol four years ago. Heaphy, in an interview for this week’s SpyTalk podcast, debunked, piece by piece, virtually everything Trump said at his Tuesday press conference about one of the seminal events in recent U.S. history.

No, Heaphy says, there is “absolutely no evidence” that Hezbollah or any foreign terrorist group was involved in the events of that day, as Trump had suggested. There were indeed some guns carried by Capitol rioters—and several intruders have been charged with having them—despite Trump’s claims that there were “no guns.” And while Trump claimed that one of the rioters, Ashley Babbit, was a peaceful protestor shot by police “for absolutely no reason,” in fact she was was “breaking through a window into the speaker’s lobby” when she was shot by a police officer trying to resist the assault of a violent mob.

“I don’t understand it…just completely unfounded allegations,” Heaphy said about Trump’s comments. “The fact that these lies can gain currency to me reflects the sort of underlying cynicism that a lot of people have in the country about our institutions—and the big ones being government and media, right? Things that you and I take for granted as uncontroverted facts. We saw with our own eyes the violence at the Capitol.” (Trump himself was impeached for his role in “inciting” the riot but acquitted in the Senate.)

Heaphy has written a new book, Harbingers, that offers some fresh perspectives on the events of that day, drawing striking parallels to another ugly protest that he investigated: the Unite the Right Rally by white supremacists in Charlottesville, Va., in 2017. Heaphy, a former U.S. attorney under President Obama who lives in Charlottesville, had been hired by the city to conduct an independent review of what happened during the protest and how the city and law enforcement responded.

The “terror attack by white supremacists,” as Sen. Marc Rubio called it at the time, left 35 people injured and three dead, including a woman overrun by a car driven by an avowed neo-Nazi.

After Heaphy launched the Jan. 6 probe, “the parallels were immediately obvious” to Charlottesville, he says. Both masqueraded as political demonstrations but quickly turned violent. Both were planned online— “in plain view,” Heaphy writes in his book—on open source social media platforms fueled by disinformation and demonstrable lies. And in both instances, law enforcement was, says Heaphy, “woefully unprepared.”

That leads Heaphy to perhaps his most controversial proposal: that the FBI loosen its internal rules that restrict agents’ ability to investigate and, if necessary, act on social media posts that, while not specifically advocating political violence, may suggest a receptivity to engaging in it.

Heaphy, left, at the Capitol during a hearing with the House committee investigating the Jan. 6, 2021, attack. (Jason Andrew for The New York Times.).

Those rules, embodied in the FBI’s Domestic Investigations and Operations Guide (or DIOG) are there for good reason. Throughout much of its history, under its longtime director J. Edgar Hoover, the FBI routinely investigated political dissidents and civil rights leaders, wiretapping their phones, inserting informants into their ranks, and ultimately during a notorious program code-named COINTELPRO, harassing and threatening them in ways that caused critics to accuse the bureau of becoming an American Gestapo.

Once exposed, initially by the Church Committee in the late 1970’s, the FBI was forced to dial back and impose strict limits on any investigative activity that is “based solely on the exercise of First Amendment rights.”

“Look, they have a terribly sordid history of essentially investigating people based on protected speech,” Heaphy told me on the SpyTalk podcast. “I'm not suggesting we throw [the DIOG rules] out, or we disregard that. I just think the dial needs to be turned to a little bit more vigilance.”

Under the current rules, the FBI can “take no action based on open source, protected speech, unless it is sufficiently specific and credible to justify opening a preliminary investigation. So let's say, for example, someone on Facebook posts a photograph [of someone] carrying an AK-47 with the caption, ‘January 6th is 1776, see you in Washington.’ That is not directly threatening, that is not very specific, not necessarily credible. It goes nowhere. It doesn't get aggregated. No one goes and knocks on the door of that person and says, ‘You posted this picture—what are your intentions?’ And I believe they therefore do not fully aggregate or appreciate patterns that emerge on these social media platforms.

“So I get it,” Heaphy continued. “It's not like you can just throw the doors open and give them carte blanche. I'd like to see them be a bit more proactive.”

Short Circuits

Heaphy suggests that these limitations seriously limited the FBI’s ability to disseminate intelligence reports about problematic social media posts in the run ups to Charlottesville and January 6th, resulting in law enforcement officers on the ground being totally unprepared for what occurred.

But is it possible to “dial back” the rules without impinging on free speech rights enshrined by the Founders in the very first amendment to the Constitution?

“If something one posts on social media is going to lead to a knock on the door from an FBI agent, that could inhibit free speech, right?” I asked him.

“Yeah, no question,” he said. “There's a tension here. And I get that. But I think given how they keep failing at operationalizing this intelligence and we're experiencing these horrific acts of violence, I think it's time to reassess that policy. I really do.”

Heaphy acknowledges there is not much likelihood that Trump’s pick for top law enforcement posts—Pam Bondi for attorney general and Kash Patel for FBI Director—are likely to be receptive to such ideas. Instead, they or at least some of their allies have indicated an openness instead to investigating the January 6 committee itself.

In fact, a House subcommittee chaired by Rep. Barry Loudermilk, a Republican from Georgia, just last month offered them a roadmap for doing so, releasing a report that accused the Jan. 6 panel of destroying evidence and even witness tampering because one of its lead members, then-Rep. Liz Cheney, had talked to a key witness, former White House aide Cassidy Hutchinson, without the presence of her lawyer. (Loudermilk’s subcommittee has just been turned into a full committee by Speaker Mike Johnson to continue its investigation into the new Congress.)

It’s all nonsense, says Heaphy. And no, he adds, he’s “not really” worried.

“I’m not concerned that Ms. Cheney or anyone else has any real exposure,” he said. “All she or we did was [pass along] information that was provided to us by witnesses, by documents, and make them public. She was, like all of us, given information that we then put forth in investigative findings. That's not criminal.

“And this narrative about destruction of information is also completely absurd,” added the former prosecutor. “Completely absurd. Completely absurd. Look, the House rules show that the official record of an interview is the transcript. So we did transcribed interviews and depositions, and every word of those are preserved in the transcripts, and that is what was sent to the archives as the official records.”

Video Questions

There were, he adds, some videotapes that were not included in the official record of the committee—for a reason. “Several White House staffers and Secret Service agents were only made available to the committee under the condition that we would not make their names public. We would not make the information public because it would threaten national security if there was public information about White House operations. I believe that the Loudermilk committee has actually gotten those transcripts and has had full access to them. So while they weren't published like the rest, they have now been made available.

“Again, nothing has been destroyed,” Heaphy declared. “Nothing has been hidden. There's no smoking gun that was not disclosed. That is not a basis, based on what I know, for any kind of criminal exposure or investigation. So bottom line, in answer to your question: they can ask a lot of questions, but there's just no there there.”

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