These two ideals – that you are innocent until proven guilty, and have enough time to prove that innocence – are the best way we know of to ensure that justice is served.
But when these ideals are applied to the extreme, it can lead not only to a denial of justice, but also to a significant loss of confidence that the American legal system is delivering justice.
In January, the United States Capitol was invaded by what I believe are national terrorists determined to overthrow free and fair elections. Worse yet, they tried to strike a dagger at the heart of American democracy.
Nine months have passed since these crimes were committed, and yet the country is still waiting for the leaders of this attack to be charged with the crime that was committed: sedition. The Justice Department and the FBI have done a heroic job identifying numerous members of the mob, arresting and laying obstruction, conspiracy and weapons charges against hundreds of people. I have no doubt that those charged will be tried and that many will be imprisoned. I think there are good reasons why the Department of Justice is taking its time and it should not be judged on day to day progress.
But just as justice is blind, the American people cannot be blind to how the system works. The FBI and the Justice Department could not be more opaque about the progress of the investigation, and this lack of information has led many to conclude that nothing will happen.
Last week, Attorney General Merrick Garland had to defend the DOJ against allegations that it was not prosecuting aggressively enough, in which he reiterated that prosecutors have a policy of disclosing as few details as possible.
The information made available to our fellow citizens was almost non-existent, and what was made available was so dense that the public largely ignored it. The Senate released a nearly 400-page comprehensive report earlier this month that details what happened that day. But it was such a long and impenetrable examination that it is already lost in public discourse – not to mention the fact that the report, which detailed extensive criminal behavior, did not generate any criminal reference.
On the House side, the bipartisan select committee on Jan.6 issued a series of summons to the highest ranking people in Trump’s orbit, minus the former president himself. These subpoenas, to Trump’s leadership, are meeting resistance from at least one Trump loyalist, Steve Bannon, over the dubious claim of executive privilege.
When the deadline expired, the House committee was only able to issue a firm sentence and said it was exploring ways to enforce subpoenas. Despite knowing the deadline date and the likely outcome, the select committee had no apparent strategy ready to deal with this resistance, and certainly no strategy to let the public know what was going on. They should have been ready with an aggressive media push explaining exactly how they would compel people to comply with a subpoena.
The reality is that these subpoenas will likely end up in court and could languish for years, much like congressional subpoenas in Trump’s impeachment trial.
Many Americans, including former federal prosecutors, demand to know who did what and who will be held responsible for this crime against the state. They want to know how far this has gone in the chain, including what the former president’s role was in the attack.
As another legal maxim says, justice delayed is not justice at all. And many Americans who are tired of waiting to see visible progress are already losing faith in their country’s legal system, assuming no one will be held accountable. My Twitter feed is littered every day with Americans criticizing Attorney General Garland, with some calling for his impeachment. At a minimum, they no longer believe that the courts can guarantee proper justice for those with money and influence.
This loss of confidence is just as dangerous as a crippled legal process, because it literally undermines the very foundation of our legal system.
What can law enforcement do to solve this problem? It’s simple: tell us more. Keep the American people informed of the progress of the investigation in a transparent and accessible manner so that we can all believe that justice will be served in the end. Congress should not be wringing its hands; he should enforce subpoenas with all available weapons, including the contempt of Congress arrest.
Americans need and deserve to know that the people who tried to overthrow our democracy will be held accountable – responsible for trying to dismantle and destroy the institution that makes us great. And that applies to the awareness of how the former president can be involved.
Today, many believe it will never happen because months have passed with timid progress and little transparency. We need to know more, not only because we are curious, but to maintain confidence in the justice system which has protected our democracy for more than two centuries.