Tim Heaphy was at his office at Madison Hall on the campus of the University of Virginia when he watched on television as hundreds of angry supporters of then-President Donald Trump ascended into the U.S. Capitol in Washington, D.C., in the early afternoon of Jan. 6, 2021.
A former assistant Virginia attorney general and at the time the lead counsel at UVa, Heaphy knew immediately what was happening.
“The symbol of democracy was attacked, and the consequences of that rhetoric and the lies that were fed to people was an insurrection,” he said. “It really was an insurrection, it was an attempt to prevent the peaceful transfer of power, that is rebellion against the government.”
The violence that Heaphy saw unfolding in real time immediately brought back memories of scores of white nationalists clashing with counterprotesters at the Unite the Right rally in Charlottesville in August 2017, resulting in more than 30 injured and one dead.
In the aftermath of the rally, Heaphy — who served as U.S. attorney for the Western District of Virginia from 2009 until 2015 — was tasked by the city of Charlottesville to lead an independent review of the city’s handling of the events, which found that law enforcement and city officials made several significant mistakes, resulting in violence and distrust.
“I have been studying this and I’ve been thinking about political violence for a long time, but I was more disappointed than shocked,” Heaphy said of the Jan. 6 attack. “I saw the significance of the event right away.”
Because of his background and experience, Heaphy in August 2021 was appointed the chief investigative counsel for the congressional Select Committee to Investigate the January 6th Attack on the U.S. Capitol.
The panel’s findings, which it presented to the public over several televised hearings last summer, served as a launchpad for the criminal investigation by Special Counsel Jack Smith into the alleged plot by Trump and several of his associates seeking to overturn the results of the 2020 presidential election that he lost by more than seven million votes.
Trump has since been indicted on four criminal counts in federal court in Washington. In addition, a grand jury in Fulton County, Georgia, indicted the former president and 18 allies, including his longtime friend Rudy Giuliani and former White House Chief of Staff Mark Meadows, on multiple counts related to a conspiracy to subvert the will of voters, which culminated in the Jan. 6 attack on the Capitol by a mob of Trump’s supporters.
Heaphy returned to private practice after the conclusion of the congressional probe. He now leads the investigations and enforcement practice at Willkie Farr & Gallagher LLC in Washington.
Ahead of Trump’s expected surrender to authorities at the Fulton County Jail on Thursday, Heaphy, who lives in Charlottesville, spoke to Cardinal News about his work for the select committee and how much his findings have informed the criminal investigations into Trump. The interview has been lightly condensed and edited.
How did you get appointed as the chief investigative counsel for the Jan. 6 committee?
I got involved because of yet another friend from law school, Sean Patrick Maloney, who was the head of the Democratic Congressional Campaign Committee. He was in the House of Representatives as a congressman from New York and was in Speaker [Nancy] Pelosi’s leadership team. He reached out to me when the select committee was formed. Congress wanted an independent commission, but that failed, so they pivoted to a select committee.
And as they were building a staff, because of my work in Charlottesville, Sean was trying to gather names of potential staff leaders for the speaker, and reached out, and I said I was interested.
I was going to do this at first as a leave of absence from UVa, and both the president of the university and [Virginia] Attorney General Mark Herring said that they would approve that, that it was fine for me to leave my position as university counsel and go serve as chief investigative counsel for what was going to be about a year, flexible depending on how long the work took.
So I met with the speaker’s staff and was hired to essentially run the day-to-day investigation in August of 2021.
On this assignment you were able to draw from an experience that you just referenced, the 2017 Unite the Right rally in your hometown of Charlottesville. In its aftermath, the city of Charlottesville commissioned you to write a report on the city’s handling of that rally. Did anything that you have learned from this investigation inform your later work for the select committee?
There are a lot of similarities between what we learned in Charlottesville and what happened with respect to the attack on the Capitol. The first was that both events were planned online, in plain sight, and there was plenty of intelligence in advance of the Unite the Right rally and before the January 6th event at the Capitol that provided really clear warnings to law enforcement that these events could be violent.
Regardless of that, at both events law enforcement did not thoroughly prepare, and they underestimated the threats of violence, they didn’t operationalize the intelligence they were gathering. So there’s one huge commonality, and I think there are a lot of reasons for that. We mistake threats when they come from middle-aged white guys — I think there is some sort of implicit bias at play here — and we overestimate danger from black and brown protesters, and that is common to both events.
And law enforcement doesn’t do enough proactively, in my view, with open source information. The FBI and other agencies restrict, by their own procedures, what they do with stuff that they see online and in public forums. Because of First Amendment and freedom of association concerns they don’t take any action, unless the information is sufficient to open a preliminary criminal investigation, and that’s a pretty high standard.
So they don’t do anything prophylactic, they don’t interview people based on what they post or take any action at all unless it is very specific and very threatening. And that’s a problem, that means they don’t aggregate information, they miss stuff because of those restrictions.
And then also they just don’t coordinate. A lot of agencies are working on these issues, but they are all kind of siloed, and we don’t do a good enough job consolidating the information and pulling together multi-agency intel-gathering and assessments. For all those reasons, both Charlottesville and January 6th, with lots of information in advance suggesting violence, yet the plan was insufficient to protect the people.
You’d think that these agencies would have learned some valuable lessons from the 9/11 Commission Report released in 2004 that identified numerous intelligence failures occurring before the attacks due to a lack of interagency cooperation.
That’s a very good example, right? The 9/11 Commission similarly found there was a big division between intelligence gathering and law enforcement, and they had all these very specific changes that tried to increase coordination between those two functions. But we still haven’t gotten that right in this country, we don’t share information across agencies very well. That was a huge problem with the Capitol.
Your work on the Unite the Right report has given you some pretty good insights into the national political climate during the Trump presidency, and even though President Trump did not attend the rally, he was front and center, especially because of his controversial remarks after the rally. Was that, to you, at least some kind of foreshadowing of the events after the 2020 election?
I’m not really as comfortable giving you my opinion about politics. I can say though, on the facts, there is no question that people at both events paid very close attention to the things that President Trump said. We talked to people in both investigations who directly cited him as part of their reason for their participation, particularly Jan. 6th. So many people we interviewed said, “Well, I was here because he invited us.” His “big protest in D.C., will be wild” tweet from Dec. 19, people read that as a direct invitation to come. Same thing with his speech on the Ellipse, during his remarks on the morning of Jan. 6, “we’re going to the Capitol, we’re gonna fight like hell.”
People took that seriously, and people still take it seriously. That’s why his rhetoric is so dangerous, because what he says may be rhetorical or is political speech, but people out there don’t see it as rhetorical, they see it as literal. And when he said after Charlottesville “there are very fine people on both sides,” people heard that as legitimizing hatred, as legitimizing the white supremacy ideology that was there on one side of that conflict. Words matter, and his words definitely matter, and they were taken seriously by people on the ground in both instances.
What was your typical day working for the Jan. 6 committee like?
The day-to-day work was very, very intense, it was as busy as I have probably ever been as a lawyer. It was a combination of fact-gathering — like interviewing people, looking at documents, reaching out to people for different documents.
I created this investigative structure of five separate teams, each of which was focused on a slightly different subset of the investigation. Each team had a senior investigative counsel who was leading that team and several other lawyers and professionals working on that team.
I was coordinating the work of all the teams and making sure that every team knew what the others were doing and that the information was flowing within our staff and up to our members — we had nine members of Congress on the committee — and briefing them, making sure they were aware of everything we were doing. It was a lot of communication up to them and communication down to the staff and coordinating the workflow day to day.
But I was not just the supervisor, I led a lot of the significant interviews myself. I did [U.S. Attorney General] William Barr, General Mark Milley, Ivanka [Trump] and Jared [Kushner], and [former White House Counsel] Pat Cipollone, a lot of the big witnesses.
A congressional select committee, by definition, is of a political nature, and a committee does not have the power to charge anyone with a crime. How did that translate that into your investigative work for the panel as opposed to a similar investigative role for a prosecutor’s office?
It’s the same core function, such as gathering the facts and trying to tell a truthful, credible story. It was pretty obvious to us pretty early that there is criminal conduct. The more we got into this, the more we realized this is criminal. We couldn’t charge anyone, obviously, but we kind of knew that we were building toward issuing findings in a report that might lay a foundation for prosecutors.
We were also getting to people before the Department of Justice. It was obvious to us that they were really focused on rioters, kind of the blue-collar aspect of the case, the people that were committing acts of violence at the Capitol. We were very focused on white-collar aspects of this: the stolen election, the fake electors, the pressure on state officials — we were developing those facts first.
So it became obvious to me that what we were finding will be important to them [the Department of Justice]. All we could do is gather the facts, hold hearings, put it in a report and eventually give them everything we found so that may be a foundation for a criminal investigation.
And that’s what happened, we gave them everything, every interview, every document that we gathered. When we finished, we turned it all over to the special counsel, knowing that they were going to build on that toward a criminal investigation and potentially a criminal case.
What was, in your memory, the biggest challenge during your investigation?
The challenge was there was so much information and not enough time or enforcement ability to get everything relevant. First of all, this was the most photographed criminal event in history, and that’s great, but it’s a blessing and a curse for an investigator. There is so much video, so much information pouring in. That’s good, right? Because you get lots of different vantage points and different perspectives, but it’s also difficult to get your hands around it, because there’s just so much. Just getting our hands around the huge amount of information was hard.
Also, Congress doesn’t really have the ability to enforce its subpoenas. We would issue subpoenas, and we would often get objections from people, like “I’m exerting an executive privilege, and I’m not going to come in for any questions.” That’s what Mark Meadows said, for example. And Steve Bannon.
The only way for us to push through or rebut that is to go to court for a civil proceeding, and that takes longer than we had. We were going to expire at the end of the Congress, and everyone knew that, and therefore they could exert a privilege objection to our inquiries, to specific questions or towards a subpoena as a threshold matter. And they knew that by the time we get a judge to weigh in on that, it would be too late.
So that was frustrating, we could not litigate baseless privilege assertions as opposed to the special counsel, who could just go upstairs to the chief judge —– in a criminal proceeding you get a ruling immediately — and he was able to use that to overcome those privilege assertions. We didn’t have that ability.
And then the other challenge I would flag here is that with so much scrutiny on what we did — that is not beneficial to an investigation. There are a lot of people that would say to us, “Look, my client is willing to come in and talk to you, but he is very concerned, because as soon as he does, it will be reported on CNN that he gave an interview to the select committee, and that has very negative consequences for him.” And we couldn’t do anything in secret, and that made it a lot more difficult.
If we were able to do this more quietly or more confidentially, we would potentially have gotten even more information. But given the scrutiny — there was a pool camera right in the lobby of our building at any time, any day — that made it very difficult for us to do anything in secret.
Which one of your findings shocked you the most?
I think I was most surprised how close this came to working. I kind of went into it thinking, you know, there were a lot of angry people at the Capitol, and law enforcement was prepared. But I didn’t appreciate that but for the actions of a handful of people this could have worked. I didn’t appreciate how methodical and planned out it was, this multipart plan to disrupt the joint session. That was intentional and it reaches way back, arguably even before the election, when people started talking about how there will be fraud and they won’t accept the results.
And if it wasn’t for Bill Barr, [former Vice President] Mike Pence and [Georgia Secretary of State] Brad Raffensperger, and [former deputy U.S. Attorney General] Richard Donoghue, who acted not in their political interests — these were all Trump appointees or conservative Republicans — they did the right thing because they didn’t want to bend the rules. But they could have. And if it weren’t for the strength of some of those people that stood up and said, “No, I cannot do this, despite you, Mr. President, asking me to,” it would have worked.
Democracy is a little bit more fragile than I expected. I like to think of our institutions as durable — and they are — but they come down to people. And if people don’t do the right thing, then they could crumble. And luckily, here people did the right thing. But if they didn’t, and if Mike Pence had said, “Sure, I will accept these fake electors and let the courts sort it out,” we would have had a different outcome. And that was shocking to me, how close it came to working.
Some people have criticized Attorney General Merrick Garland for waiting too long to appoint a special counsel in the Jan. 6 probe, and some argue that it was the work of the select committee that eventually forced him to act. Do you think that’s true?
I don’t know what was going on behind the scenes at the Justice Department, but as I said before, we were clearly getting to some of these people first. So when we interviewed [former White House aide] Cassidy Hutchinson or Pat Cipollone, these are people at the highest levels within the White House that had not been approached by the Justice Department. So it’s clear that we were ahead of them in developing this story. And I think what happened is that the facts dictated their conduct.
So you could say it was the committee, but it was our ability to get really important facts and present them in those summer hearings. When we started presenting the story, the facts were compelling and the witnesses were so credible, that’s what motivated them to act. They couldn’t ignore the facts, so it seems clear to me that our process by generating those facts is what motivated them to look at those same facts and take them more seriously.
When you look at the evidence that you have uncovered for the Jan. 6 committee and you compare your findings to the indictments by Special Counsel Jack Smith and Fulton County District Attorney Fani Willis, did you notice any significant differences ?
It’s all pretty identical. I remember [select committee Vice Chair] Liz Cheney’s opening statement in our first hearing last summer, she laid out this multipart plan to disrupt the joint session, and that’s exactly what Jack Smith and Fani Willis both laid out.
Now they have gotten some additional details. Jack Smith has Vice President Pence’s contemporaneous notes and his account of the words the president spoke, like, “You’re too honest, Mike.” They have more detail than we had.
Same thing with Fani Willis, she got some additional phone calls here or a text there, and the Coffee County voting machine stuff was a little bit beyond what we had developed, and that’s in her indictment. So there’s some additional details, but the core story in both indictments is exactly what we laid out in our hearings and in our report.
Are you willing to make a prediction for the outcome of either indictment, and which one of the two cases do you think is stronger?
Regardless of this, I’d never predict what happens in criminal cases, you just never know. But I will say they are very strong cases. There is ample evidence in both Georgia and in federal court to sustain the government’s high burden of proof beyond reasonable doubt.
I think the special counsel’s indictment is more streamlined, intentionally, because he wants to get this case tried as soon as possible. He only indicted Donald Trump and not the other co-conspirators. He charged offenses that are pretty well interpreted and established, and he stayed away from offenses that are a little bit more ambiguous or not as well defined. It is clear that he is trying to get this case adjudicated next spring, and I think he’ll likely be successful and get a trial date scheduled soon for next spring. So that case is meant to go fast.
Fani Willis’ case is more sprawling, and it doesn’t have the same structure designed to go fast, but it’s designed to be thorough. Because of that it will be a longer case and a longer trial, and it will probably follow both federal cases. I think the Jan. 6 case in Washington is likely to go first, and the Mar-A-Lago case is likely to go second. I think Fani Willis’ case will go third, and the New York case probably waits until all of this is resolved.
What is your message to Republican voters in Southwest Virginia and Southside, where Trump remains very popular and where there is still widespread belief that the former president is the victim of a deep state conspiracy to keep him from a second White House term?
I really hope that facts still matter, and that facts are dispositive. It may be that people in Southwest Virginia don’t believe in the congressional process because it’s full of politics, and they may not believe the media, because they think there is a liberal bias.
I hope that when these cases are tried, and when the same information that we presented in our hearings, that’s in books and has been reported in the media for years, that same information is going to be subject to cross-examination in a criminal trial. I hope that finally gives people a clear sense of the facts, that the election was not stolen, that there is no evidence of systematic voter fraud.
Donald Trump tried, repeatedly, to subvert democracy. That’s what these cases will show when they play out in the forum of the criminal justice system as opposed to Congress, the media or other places that people don’t trust.
My hope is that these facts matter, and that people will say, “OK, this was a step too far, this was a criminal scheme, and we can’t have that if we are going to have a functioning democracy.”
That’s my hope, that the new forum in which these facts will be represented has the potential to change minds in a way that these previous forums did not.