ELISSA NADWORNY, HOST:

We begin tonight's program looking ahead to this week's public hearing from the House Select Committee that's investigating the January 6 attack on the U.S. Capitol. For nearly a year, the group has been conducting interviews and going over thousands of documents in an effort to learn more about the violent attack and the factors that led to it. But a couple of key questions hang over the hearing and the investigation more broadly. What role, if any, did Republican lawmakers play in fomenting the attack? And if the committee does present evidence of wrongdoing, what kind of action will the Department of Justice take since the committee can't prosecute crimes?

Joining me now to think this through is Harry Litman. He's the former deputy assistant attorney general for the Department of Justice, and he's host of the "Talking Feds" podcast. Harry Litman, welcome back to the program.

HARRY LITMAN: Thanks, Elissa. Good to be here.

NADWORNY: So over the last year, you've been following the House Select Committee's investigation on your podcast. But can you catch us up a bit? Just remind us what exactly they're investigating.

LITMAN: Sure. So they were constituted about a year ago. And it was really about, as the name suggests, January 6. But as their investigation has ripened, it's expanded to cover a series of related plots, one after the other, starting not long after the election with former president as the mastermind of all of them, culminating in the melee of January 6 but encompassing, also, the attempts to get alternate electors to speak up for Trump unlawfully or the efforts to get state officials to change things unlawfully. And there are about four different plots they'll be going after - financing of the January 6 riot, advertising of it and the like. So the core event, the epicenter, is January 6 itself, but it really extends backwards a couple months.

NADWORNY: Yeah. One of the questions hanging over this investigation is whether top Republicans played a role in fomenting the attack. But if the select committee finds evidence of wrongdoing, it won't actually be the one who prosecutes them. It'll be the Department of Justice. You're a former DOJ official. What do you think is going to factor into that decision?

LITMAN: We pretty well know, from the cache of emails to Mark Meadows on the day of from Kevin McCarthy, Jim Jordan and others, that they did play a role. Was it an instigating or conspiring role or simply a, you know, reactive and supporting role? That we don't know. But I do think there's no doubt that plausible criminal behavior will be uncovered as to many people. And when I say plausible, I mean behavior that merits investigation. They have gone through a whole run of dozens of guilty offenders from January 6 on the frontlines, but they have two other grand juries now looking at state and federal officials.

And this is a boring, bromide answer, but it's true. You know, as Merrick Garland said, January 5, they'll follow the facts and the law. And so they'll have to think, what cases can we really make stick? The ultimate question, of course, is the committee certainly will document what looks like criminal conduct by Trump and my best guess is even refer it over. What will the department do then? And you've just got to say that it's a hugely complicated question that involves more than his guilt and innocence and probability of conviction. It's a welter of concerns that you could summarize, as you know, is it in the best interests of the country?

NADWORNY: A couple of days ago, we learned that the DOJ will not pursue criminal contempt charges against Mark Meadows and Dan Scavino...

LITMAN: Right.

NADWORNY: ...Two former Trump White House officials. However, another Trump White House official, Peter Navarro, has been indicted for not cooperating with this investigation. So why one and not the other? Can you help us read the tea leaves here?

LITMAN: Yeah. Remember with Mueller those dreaded OLC memos? In that case, it said you can't indict a sitting president. He considered himself bound. The Office of Legal Counsel has issued opinions saying for certain, very small circle of presidential advisers, they have a right to so-called testimonial immunity. But my best guess is Meadows and Scavino, that looks like an immediate adviser. So either we're kind of bound unless we withdraw this OLC opinion so it's not a crime or, at a minimum, we can say that if you rely on that, you know, you're not criminal beyond a reasonable doubt. That mitigates your sort of state of mind.

A guy like Navarro, who wouldn't engage at all, wrote a book and has trumpeted it and, more importantly, yeah, he hung around the White House, but he's a trade adviser, I think is plainly not an immediate or senior adviser, which would grossly expand the putative circle of this idea. And that's why the department was able to analyze and make that distinction. And now he is facing, you know, two counts of contempt of Congress.

NADWORNY: Yeah. So before we let you go, let's talk about the public hearing coming up on Thursday night. What will you be watching for? You mentioned Cassidy. What else are you watching for?

LITMAN: Well, so this is the kind of curtain raiser for them. They're going to present what the next either five or seven hearings will show. So they want to tell the overall story. Sad to say, one way to look at it is kind of as a drama critic because they've got this really hard job on their hands, people watching in real time and continuously. And I think they want, you know, first to do no harm. They got to keep it interesting and avoid the sort of falling flat that could be the snippet that plays at least on Fox News.

So I'm going to be looking to them. In all accounts, by the way, this is, I think, clearly the most competent, impressive, wide-ranging congressional investigation ever mounted in the country. So I'm looking for a combination of continuous revelation but without any risk of falling flat. And they don't have that many bombshells left, I think. So we'll also look at how they'll kind of be feeding out the information to hopefully keep the engagement of an American public that at least the Republicans are betting might be - either chunks of it might be hostile, and others might be subject to January 6 fatigue.

NADWORNY: That's Harry Litman. He's the former deputy assistant attorney general for the Department of Justice and host of the "Talking Feds" podcast. Harry Litman, thanks so much for joining us.

LITMAN: My pleasure, Elissa. Transcript provided by NPR, Copyright NPR.