On Tuesday, The Washington Post reported that the Justice Department is investigating the actions of former President Donald Trump as part of its broader January 6 criminal investigation. Earlier today, in an exclusive interview with Lester Holt on NBC News, Attorney General Merrick Garland suggested that the Justice Department’s federal criminal investigation went far beyond the rioters who attacked the Capitol.
It probably isn’t, though.
Maybe we are asking the wrong question. Trump may not care about the Post report or Garland’s interview. But should it be?
It seems that Trump never worried about anything. He didn’t seem to care when the Justice Department’s power was deployed against him in the form of the Mueller investigation. He mocked the probe with sarcastic tweets. He certainly doesn’t seem too concerned about what he calls the January 6 “Un-Select” committee. So maybe we’re asking the wrong question. Trump may not care about the Post report or Garland’s interview. But should It is?
Honestly, I’m not so sure.
Holt asked the right questions. Garland gave answers that were likely prepared, printed out and memorized at her desk long before she arrived on the NBC News set. The Attorney General’s responses didn’t really tell us much about whether Trump is a criminal target. They weren’t bombshells or revelations. They were more like memes. “No one is above the law”? President Theodore Roosevelt said this too in 1903. Justice will be pursued “without fear or favour”? It sounds like the same kind of lofty language you’d find in the Department of Justice’s Federal Prosecution Principles.
Garland said the Justice Department “inten[ds] to hold accountable any person… who was criminally responsible… for any attempt to interfere in the legal transfer of power from one administration to another. Has Garland just confirmed that his investigation extends beyond the real Capitol foot soldiers to include those who have crossed the line challenging the election results? It seems he did. But did anyone really believe that the Justice Department was limiting its prosecution to only the Capitol rioters and their immediate organizers?
Meanwhile, the Post’s report provided far more detail about the Justice Department’s investigation of Trump. What exactly was telling, though? There was never any serious doubt that the Justice Department was already looking into all the galactically stupid things Trump and his entourage have done to challenge the election results in one way or another. There are too many to count: pressure on the Justice Department to “just say the election was corrupt and leave the rest to me and the Republican members of Congress”; the alleged threats against the Georgian Secretary of State; fake voters; pressure on Vice President Mike Pence; and, of course, telling a bunch of annoyed armed supporters to “march” to the Capitol “with” Trump, and probably a dozen others.
We all learned a lot about this bad behavior during Trump’s second impeachment trial shortly after January 6, 2021. We heard even more throughout the January 6 committee hearings.
We all learned a lot about this bad behavior during Trump’s second impeachment trial shortly after January 6, 2021. We heard even more about it throughout the January 6 committee hearings this summer. What’s new, according to The Post? Apparently, the Justice Department has obtained phone records of key Trump officials and aides, including those of his former chief of staff Mark Meadows. But that was in April. Three months ago. Could this ultimately be the “smoking gun” that “connects the dots” that leads to the “closing walls” on Trump? Maybe. Or it could just cause many of us to throw around metaphors as we guess. The Department of Justice will not tell us one way or the other until they are ready to tell us. Or indict.
To be fair to Garland, he did exactly what he was supposed to do in an interview. This secrecy is, theoretically, what makes the Department of Justice so awfully efficient. It keeps things so secret that there’s no way of knowing if the evidence is mounting behind the closed doors of the grand jury room or if the investigation is stalling. Justice officials do not publish situation reports. Often the first time people learn that they are the target of grand jury investigations is when they are indicted. This system works: this is why the Ministry of Justice convicts more than 90% of the defendants it prosecutes.
That’s not to say the Justice Department isn’t investigating Trump or that it potentially doesn’t have any damning evidence against him. The January 6 committee seems to have this proof. And whatever the committee has, the Department of Justice should have 10 times as much. Its resources and methods are simply vastly superior. The Department of Justice simply does not hold presentations and hearings during its investigation. He’s too busy building airtight crates against targets.
And that’s key to understanding Garland’s lawsuit analysis process. It’s a thing of to believe Trump’s actions fit the essential elements of a federal crime, such as obstruction of official process. This is only the first step. Garland must also believe that the Justice Department can prove this case beyond a reasonable doubt. He must believe that prosecutors can overcome executive privilege, immunity, the First Amendment and other defenses. He must believe he can find a jury that won’t be sympathetic to the former president. He needs all the time he can to make this difficult decision. No wonder he was evasive in his interview responses.
Trump should be worried, because everyone should be worried when his name comes up in federal investigations. But we can assume that he is just as carefree today as he was last week. Tuesday’s news probably didn’t move the needle much.