I initially wrote this in March of 2022 and I have been periodically updating it since. The March 2022 version is here. For some reason, not all the links are showing up as a contrasting color.
I stopped updating this after indictments were brought.
No skipping ahead! This page is meant to be read in order. Later answers build on earlier answers.
1. The DOJ did nothing for a full year to bring Trump to justice.
Variations include:
- “Why didn’t the DOJ begin looking at the higher-ups involved in the January 6 attack until well into 2022?”
- “The January 6 Congressional Hearings in the summer of 2022 jumpstarted the DOJ and finally got Merrick Garland moving.”
- What about The Washington Post piece that proved the DOJ did nothing for a full year?
I will answer this question (and the variations) by showing you what we learned about the investigation through 2021 and 2022, but first, a word about how the DOJ is going about the investigation. In a speech given on January 5, 2022, Merrick Garland explained how the DOJ was conducting the investigation:
Everyone in this room and on these screens is familiar with the way we conduct investigations, and particularly complex investigations.
We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.
Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.
In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.
We follow the physical evidence. We follow the digital evidence. We follow the money.
Here is something Garland said on July 22, 2022:
These investigations do not happen in public for a range of reasons including secrecy in is necessary to protect the investigation and shield witnesses.
Now, for some facts.
As of January 1, 2022, more than 700 people had been indicted for participating in the attack on the Capitol.
Charges included:
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- assaulting, resisting, or impeding officers or employees
- using a deadly or dangerous weapon or causing serious bodily injury to an officer
- entering a restricted area with a dangerous or deadly weapon
- destruction and theft of government property
- corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so
- conspiracy to obstruct a congressional proceeding
- conspiracy to obstruct law enforcement during a civil disorder
(Notice all those crimes were at the ground level. The defendants had entered the Capitol and were often caught on tape committing crimes. This is the low-hanging fruit, or what Garland called, the “overt crimes.”)
On January 15, 2022, we learned from a defense lawyer, Rob Jenkins, who was representing a few of the insurrectionists, that the DOJ had been “pretty aggressive” in “seeking out information . . . that points to others’ involvement and culpability” in planning the events of January 6, including Rudy Giuliani and Roger Stone.
Okay, let’s stop right here and address the question: “Why didn’t the DOJ begin looking at the higher-ups involved in the January 6 attack until well into 2022?” As of January 2022, we had reporting that the DOJ was looking at Rudy Giuliani and Roger Stone, members of Trump’s inner circle and certainly people who count as “higher-ups.”
Now, let’s continue on.
On March 2, 2022, the DOJ secured its first conviction for seditious conspiracy for Joshua James, the leader of the Alabama Chapter of Oath Keepers. (Seditious conspiracy means conspiring to overthrow or oppose the authority of the government by force. This was the most serious charge thus far.)
James was not at the Capitol during the riot, so it was also a step toward less overt crimes. His plea deal required him to cooperate with prosecutors, including testifying to a grand jury. Also note: Joshua James was in Roger Stone’s hotel room the morning of the insurrection.
March 30, 2022: We learned that “in the past two months, a federal grand jury in Washington D.C. has issued subpoena requests to some officials in former president Donald Trump’s orbit who assisted in planning, funding, and executing the Jan. 6 rally.“
A word about grand juries. This is from the DOJ page:
(In other words, a grand jury is not the starting point. Moreover, because grand juries are shrouded in secrecy we don’t usually get leaks until the DOJ moves past interviewing the witnesses who want to be there and move on to the witnesses who are in trouble, or who are subjects or targets of the investigation.)
April 8, 2022: Ali Alexander, a guy who was heavily involved in planning the Stop the Steal rally (he was at the Capitol but never entered) received a subpoena from a federal grand jury seeking information about members of the executive and legislative branches who were involved with the insurrection itself or the plot to obstruct the transfer of power.
April 27, 2022: We learned that Proud Boys member Louis Enrique Colon —who helped plan the attack in December — was cooperating with prosecutors as part of a plea deal.
Sometime in April, 2022: DOJ investigators received the phone records of key officials and aides in the Trump Administration, including Trump’s former chief of staff, Mark Meadows. (We didn’t learn about this until July, but it happened on April 22.)
May 26, 2022: We learned that the DOJ subpoenaed information about some of former President Donald Trump’s lawyers and closest advisers as part of their criminal investigation into efforts to put forward fake slates of electors in the 2020 election. Among those asked about were Rudy Giuliani, adviser Boris Epshteyn and campaign lawyer Justin Clark.
On June 10, 2022: The January 6 congressional committee held its first public hearing. These hearings continued until October.
June 22, 2022: FBI agents searched the home of Jeffrey Clark, a former Justice Department official, who tried to help Trump overthrow DOJ leadership and overturn the election.
Also on June 22: federal authorities seized the cell phone of John Eastman. Eastman was the former law professor who wrote the memo on how Pence could overturn the election.
Sometime during the summer: Mark Meadows willingly turned over text messages to the DOJ.
(It takes time to gather the evidence for a search warrant, particularly if you want to search a lawyer or a former DOJ official. Special laws and procedure apply to lawyers because of attorney-client privilege, so obviously this didn’t happen in response to the Congressional hearing on June 10. What was happening was what Garland said would happen: The investigation started at ground level and moved upward.)
2. “The January 6 Congressional Hearings in the summer of 2022 jumpstarted the DOJ and finally got Merrick Garland moving.”
Wrong! So far everything on this timeline happened before the start of the January 6 congressional hearings.
(If you want a more complete timeline on the investigation from 2021 to the present, click here.
Now let’s address this variation: But what about that Washington Post article that offered proof that the DOJ did nothing for a full year?
Here were the headlines:
Here is how one writer interpreted the Washington Post article:
And an example of the reaction on social media:
Obviously, from the timeline I’ve shown so far, you can see that a year was not lost, and the GOP did not succeed in intimating the DOJ into doing nothing. For a more complete breakdown of that Washington Post piece, see this “The Washington Post “Bombshell” about Merrick Garland.”
3. Things really got moving after Jack Smith was appointed. Garland should have appointed Smith a year earlier.
First, let’s continue the timeline:
July 21, 2022: We learn that Marc Short, former Vice President Mike Pence’s chief of staff, and Greg Jacob, lawyer to Pence, appeared before a federal grand jury investigating the Jan. 6 attack.
July 28, 2022: We learned that Former DOJ staffer Ken Klukowski, who worked with Jeffrey Clark, was cooperating in the DOJ Jan 6 investigation, including allowing a search of his electronic records.
August 3, 2022: Former Trump White House counsel Pat Cipollone and Patrick Philbin, who worked in the White House under Cipollone, were also subpoenaed by a grand jury for testimony and documents about the efforts to overturn the election. They are expected to appear before a federal grand jury on September 2.
August 9, 2022: FBI agents seized Rep. Scott Perry’s phone.
August 10, 2022: The FBI delivered subpoenas to Pennsylvania lawmakers.
August 15, 2022: We learn that a federal grand jury investigating the Jan. 6 attack subpoenaed Trump White House lawyer Eric Herschmann for documents and testimony.
September 6, 2022: A federal grand jury sent subpoenas on Wednesday to a wide range of former campaign and White House staffers asking for information about the Save America PAC. At least one of the subpoenas also demanded information about the plan to submit slates of phony electors claiming Trump won pivotal states, including all communications with several key lawyers and advisers involved in the effort, including Rudy Giuliani, Boris Epshteyn, Bruce Marks, Victoria Toensing and Joseph DiGenova. Among those subpoenaed was William Russell, who served as a special assistant to the former president and went to his home in Florida. Steve Miller was among those subpoenaed. Rumors on Fox were that some had also received search warrants (presumably for documents.)
Between September and December 2022, the DOJ had to jump through legal hoops secure the testimony of three of Trump’s lawyers, M. Evan Corcoran, John P. Rowley III, and Timothy C. Parlatore, Pat Cipilonne, Rudy Giuliani, Pat Philbin, Marc Short, and Greg Jacob.
November 18, 2022: Jack Smith is appointed special counsel.
Garland appointed Smith because Trump announced his candidacy for office, which created a conflict of interest.
The investigation did not speed up after Smith was appointed. For the remainder of the timeline, click here.
4. Why can’t they charge Trump now with the evidence they have and keep investigating?
Variation: “Garland should just indict what they have now and bring superseding indictments later.”
Getting to the Truth is a Process
A number of former prosecutors advocate a strong-arm method of getting to the truth: subpoena them all, force them all to tell the truth, and throw them in jail if they don’t.
Unfortunately, the strong-arm method is unlikely to get you very far.
Problem #1: To “force them to tell the truth,” you have to know the truth before you start questioning witnesses, which is the wrong order of things. Through the questioning of witnesses, the truth comes out.
Problem #2: People can say they don’t remember. Technically it’s perjury if a person says “I don’t recall” but they actually do recall. But it’s rarely prosecuted because it’s hard to prove, and a lot of people really can’t remember details.
Problem #3: The Fifth Amendment is always available as a way to avoid answering questions.
A hostile witness or an adverse witness is one who doesn’t want to be there and doesn’t want to talk. A good cross-examiner can squeeze facts out of a hostile witness, but it’s hard. If all the witnesses are hostile, you may not get very far. The idea is to have as many cooperating witnesses as possible.
Cassidy Hutchinson’s process
Cassidy Hutchinson, (White House aide and assistant to former chief of staff Mark Meadows) had to go through a months-long process before she was able to be forthcoming with the committee. She was one of the people in the room when it happened.
In February, she received a subpoena from the Select Committee. She was twenty-six years old, unemployed, and had no money. Her aunt and uncle had offered to refinance their house to raise the money she needed for a lawyer but their application to refinance was not approved. When she wrote to Trump people, she was “primarily seeking financial assistance.”
Trump world provided a lawyer for her, a die-hard MAGA person. While working with this lawyer, she was not forthcoming with the committee. Then, she switched lawyers to one connected with Jeff Sessions. With her new lawyer (and having bonded with Liz Cheney in the process) she found new courage and was able to offer the riveting testimony we saw on television.
Pat Cipollone’s process
As a result of Hutchinson’s testimony, Cipollone agreed to testify under oath. Previously, he resisted. The committee primarily needed him as a corroborating witness. (If six people are in the room where it happened, and one testifies truthfully, and the others close ranks and call her a liar, a jury may waver. But if the White House counsel is able to corroborate her story, the truth gets easier to prove in court.)
Prosecutors who rush to trial without all the evidence risk being surprised at trial with evidence they didn’t know about. Sometimes the new evidence can change our understanding of what happened. For example, here is what we knew at the time of Trump’s second impeachment:
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- On December 19, 2020, Trump summoned supporters to D.C. with his “be there, will be wild” Tweet.
- During Trump’s January 6 speech on the Ellipse, he told the crowd: “If you don’t fight like hell, you’re not going to have a country anymore.” Then, perfectly timed for when Congress was scheduled to certify the election, Trump directed his protectors to the Capitol and said he would accompany them.
- Reporting at the time of Trump’s second impeachment told us basically that about 50 minutes into Trump’s speech, some of his supporters began heading toward the Capitol where “unprecedented mayhem ensued.”
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Legal scholars at the time debated whether “be there, will be wild” and “fight like hell” was legally sufficient to prove that Trump incited violence given the difficult hurdle for proving that speech incited an insurrection under the Brandenburg test.
Since then we have learned (mostly from DOJ filings) that the paramilitaries that led the attack on the Capitol (1) were not at the Ellipse when Trump gave his speech; they skipped the rally and went straight to the Capitol, (2) they came prepared for military action on January 6, and (3) they did much to rile the crowds after Trump sent them to the Capitol.
Now the head of the Oath Keepers, Stewart Rhodes, and his sidekick Kelly Megs have been convicted of seditious conspiracy, which establishes that this was not a spontaneous reaction to Trump’s speech, it was meticulously planned in advance.
In other words, what happened was a lot more complex than what we thought at first and these new details undermine the theory that it was Trump’s speech at the Ellipse that incited the attack and caused the damage. (On the other hand, the new facts are potentially much worse.)
A prosecutor who puts one story before the jury and then said, “Wait! That’s not what happened. This is what happened,” is on shaky ground. Prosecutors need to know what happened before they walk into court.
A guilty defendant knows exactly what happened, and will know if the prosecution has the wrong end of the stick. The defense can then introduce evidence at trial showing that the prosecution has the wrong end of the stick, and the prosecution falls apart. Example: If Trump had been charged in March of 2022 with inciting an insurrection, and the defense submitted evidence that the people who committed the violence (1) were not at Trump’s speech and (2) did not hear Trump’s speech, the prosecution would have looked stupid and Trump would probably have been acquitted.
Because the new facts we’ve learned since last year point to even more culpability for Trump, rushing to trial last year would have greatly increased the chances of Trump escaping criminal consequences for his role in the insurrection.
Good prosecutors don’t rush to trial before they have all the evidence and a firm understanding of exactly what happened.
Also, see this article for what can go wrong when filing too many indictments too quickly.
Two stories about prosecutors who rushed to trial without all the evidence.
The first is the story of a young (and arrogant) federal prosecutor who was absolutely sure he had a case against my client. Indeed, the case looked airtight. My client was caught red-handed with illegal drugs. Plus she confessed.
You can’t get more straight-forward than that, right?
Turns out that the prosecutor didn’t get all the facts.
The facts: My client was sleeping in the backseat of a truck. Further back in the truck were illegal drugs. The truck driver owned the truck. He was her boyfriend. He was also married (but obviously not to her).
So there she was, sleeping in the back of the truck (with drugs nearby) when the truck driver drove onto an air force base right past the sign that said, “All vehicles passing this point are subject to search.” Yes, he did that . . . (defense lawyer = 
)
The purpose of the sign was obvious: If you drive past the sign, you consent to a search. If you consent, the search is legal under the Fourth Amendment. I don’t know why he drove past that sign under the circumstances. Maybe he wasn’t the best reader.
My client woke up as the officers were searching the truck. Her boyfriend, in a panic, took her aside and said, “You gotta say the drugs are yours. If I get charged, I’ll lose my job.” (Apparently, he was also terrified his wife would find out.)
So my client did it. She confessed and said the drugs were hers. She was charged with a federal crime because they were on federal property.
First, I tried to talk the prosecutor out of insisting on jail time, which would have totally ruined her. She would have lost her job as a laundress. She was barely hanging on financially and otherwise.
He wouldn’t budge. He insisted that she should go to jail.
Me = 
Then= 
I filed a motion arguing that the search was illegal as to her because a sleeping person can’t consent to a search.
Guess what? The judge agreed with me. During the evidentiary hearing, he turned to the prosecutor and said, “I don’t see how someone can come out of sleep and give consent.” Winning on my motion would mean that the evidence would be excluded under the exclusionary rule. (Evidence obtained in an illegal search can’t be used in court.)
As soon as it was clear which way the wind was blowing, the prosecutor asked for a recess and said he wanted to talk to me. Needless to say, the case ended to my client’s satisfaction.
Had the prosecutor probed a little more and gotten the whole story, he might have seen that the case was stronger against the truck driver, who owned the truck and actually consented to the search.
One more story to illustrate the point. One of my clients was given a reckless driving misdemeanor for driving too fast in a parking lot. Ordinarily, things like this are not criminal, but she was going so fast, it was charged as a misdemeanor (criminal).
The officer had drawn a map of the parking lot showing her path and where he stopped her. We hired a professor of physics and engineering who went to the parking lot, took measurements, did the calculations, and said there was no possible way that her engine could get going at that speed given the short distance. My guess was that she was going too fast—but not as fast as the officer said.
We sent the calculations to the prosecutor. Some time passed. Charges were dropped. I assumed they verified the calculations.
The prosecutor could have refiled the charges, accusing her of going at a dangerous speed that the car could manage. But, see how that looks? A jury would wonder how the officer got it wrong the first time. Her theory was that the officer lied. Refiling the charges would look as if the prosecutor (and officer) were targeting this particular person.
In fact, the prosecutor didn’t recharge the crime. The matter was entirely dropped.
That is what Garland meant when he said, “We have to get this right.”
When to bring indictments is part of an overall strategy. It’s literally impossible for people outside the DOJ to evaluate whether the DOJ strategy is working because they don’t have all the information because a “central tenet of the way in which the justice department investigates, and a central tenet of the rule of law, is that the DOJ does not conduct its investigations in public.”
#9: A former prosecutor said so and a former prosecutor should know better than Teri (so there)
The media, including social media, is carrying on a love affair with former prosecutors.
At any given time there are more than 5,000 AUSAs (Assistant United States Attorneys) commonly known as “former prosecutors.” Literally tens of thousands of people out there can call themselves “former prosecutors.” Lots of them were not very good. All but a select few would not be qualified for Garland’s job. Even those who rose to high ranks within the department were not asked to be on the team prosecuting Trump.
Much of what these former prosecutors say reflects more on them and the kinds of prosecutors they were than Garland. For example, the ones saying “Garland is a wimp! He should have had them all arrested by now,” are either (1) looking for attention (2) are the kind of prosecutors who rush to trial and screw up, (3) have a strange infatuation with strongmen. (I’ll point out that worshipping strength and strongmen is an aspect of fascism.)
I suggest that democracy needs more of this 🤓 and less of this 💪.
One former prosecutor wrote an article insisting that every “competent” prosecutor knows that Garland will never indict Trump because he knows he probably won’t get a conviction. Basically, he was saying, “I would be afraid to indict Trump because I know I’d never get a conviction.”
#10: But what about the fact that Garland “refused” to prosecute cases handed to him by Mueller on a “silver platter?”
First, let’s talk about the “silver platter” part.
What Mueller did was present evidence of crimes. During his testimony before Congress, Mueller clarified that his team did not reach a determination as to whether the president committed a crime. Presenting evidence is not the same as preparing an indictment or even presenting enough evidence for an indictment.
We don’t know why Garland didn’t go back and prosecute Trump for crimes he committed when he was president. It could have been that the evidence presented in the Mueller report was not enough to commence prosecution under the DOJ regulations, which you can see here. It’s also possible that when Garland assumed office in March of 2021, he had an insurrection to investigate and put all of his resources toward that.
#11: The DOJ was slow to indict Trump because Garland (or the DOJ) is compromised and/or corrupt.
This is an example of a conspiracy theory. Basically it attributes evil motives to ordinary events.
The “Garland is not bringing charges because he is corrupt” theory begins with the premise that the normal time it takes to conduct an investigation is an “unnecessary delay.” The conspiracy theorist then looks for a nefarious cause of that unnecessary delay.
A conspiracy theory is one that:
rejects the standard explanation for an event and instead credits a covert group or organization with carrying out a secret plot.
A belief that a particular unexplained event was caused by such a covert group.
The idea that many important political events or economic and social trends are the products of deceptive plots that are largely unknown to the general public.
Conspiracy theories about Garland (he isn’t doing his job because he has nefarious underworld connections) assumes:
- Garland isn’t doing his job
- Garland has nefarious underworld connections that Obama’s vetting team missed when nominating him for a Supreme Court seat and that Biden’s vetting team missed when nominating him for the position of AG.
- The person putting forward the theory is smarter than everyone else and is thus able to see important truths (for example, that even Biden and Obama are in on the plot.)
It seems to me that people who put forward these kinds of paranoid theories are either paranoid themselves (and are thus persuasive because they believe what they are saying) or overwhelmed by the complexity of our government and are looking for easy answers.
Democracy requires an educated electorate. It is harder to maintain a democracy in a large, sprawling, complex government like ours because (1) it takes a lot of work to understand a system as complex as ours, and (2) so many people cannot tolerate complexity.
#12: At least indicting Trump would provide some very solid schadenfreude.
The “indict him right now!” chants are premised on a misunderstanding of what an indictment actually is. An indictment is a formal accusation. It is the start of a long, harrowing process. . .An indictment does not mean that we all live happily ever after. Trials are nail-biters and both sides often feel like they lost. The judge will make rulings you don’t like. Trump will seize the opportunity to become the star of another episode of “I am the victim of a deep state plot against me,” and his followers will believe him. Juries can be unpredictable. I thought the Rittenhouse trial cured people from believing that indictment means conviction.
Conclusion: What is a rage-inducing simplification and why are they so dangerous?
A rage-inducing simplification takes a complex situation and boils it down to something that seems true and has some truth in it, but is not true and triggers rage.
In this video, Yale professor Timothy Snyder talks about “Internet Triggers,” which he defines as something a person reads on the Internet, feels triggered by, and repeats. People often see these triggers because they are directed at them through algorithms. They are then transformed into repeaters of targeted memes. In Orwell’s 1984, the fictionalized totalitarian government worked to reduce the number of words in the language because that limited the ability of people to think (which made it easier to control them). Internet Triggers accomplish the same thing.
Snyder finds this terrifying because democracy depends on us having “some sense of time beyond our immediate outrage.”
The Facebook whistleblower Francis Haugen explained “angry, polarizing, divisive content” gets wider distribution and more engagement. She said that content producers and political parties are aware of this.
The Pew Research Center says this:
The way to fight misinformation is with truth, which is why I put the time into maintaining these FAQ pages
“So, how do we save democracy?”
The way to save democracy is with more democracy. For ways to do that, see this to-do list.
* * *
If you have any of these questions (or want a response to any of these comments) see this post on rage-inducing simplifications.
- “There are never any consequences.”
- “The consequences haven’t been harsh enough and that’s why Republicans keep committing crimes.”
- “At least while they are in jail, they can’t commit any crimes.”
- “If all lawbreakers are not brought to justice, it means rule of law in America is dead”
- “Using just the evidence available through public reporting there is enough evidence to convict Trump.”
- “The process takes too long which shows that the system is hopelessly broken.”
- “Justice Delayed is Justice Denied.”
- “At least indicting Trump would provide some very solid schadenfreude.”
- “The entire system is corrupt. Just look at _______ (example).”
- “Trump has been committing crimes all of his life. Anyone else would have been in prison by now.”
- “Just lock him up now already”
- “Stop saying that we have a political problem. we have a law enforcement problem. Committing crimes is always wrong and anyone who breaks the law should be punished harshly.”
- “You can’t go by the book when the book is burning” or “Democrats / the DOJ is bringing a knife to a gunfight.”
- “Nothing else matters if Trump is not indicted.”
This person said:
I prefer to be called an “explainer,” thank you very much. After I published an updated draft of this post, someone said:
That means it’s time for a mental health break.
If you got this far, you, too, deserve a mental health break.
Examples of mental health breaks:
