The DOJ Investigation Into the Capital Attack (FAQS)

This blog post is meant to be read in order. Later answers are shorter because they rely on the information presented in the earlier answers.

CONTENTS

Part I: Frequently Asked Questions (and comments that require a response)

1. Why is the DOJ investigation taking so long?
2. All those heavyweights and people who should know are saying Merrick Garland is doing it wrong, and that must mean something.
3. There is enough evidence now to indict Trump and members of his inner circle, so why doesn’t the DOJ just bring the indictments now?
4. The problem is that Merrick Garland is timid, weak, and too much of a centrist.
5. Adam Schiff has been slamming the DOJ and he’s on the Select Committee.
6. We need Trump convicted to keep him from running for office
7. The DOJ needs to speed things up because there is a looming election
8. Why doesn’t Garland create an allowable exception and announce that there is an investigation of Trump? This would reassure the public and settle everyone down.
9. I get that Merrick Garland wants to stick to the rule book, but our democracy is in danger so Garland needs to do something quickly.
10. If Merrick Garland doesn’t bring all the criminals to justice (quickly) rule of law in America will be dead.
11. Rich white men never get held to account for their crimes.
12. Nothing else matters if Trump is not indicted.
13. Merrick Garland needs to hurry up. Because of his delays, much damage is being done to our democracy.
14. Why didn’t Garland charge Mark Meadows and Dan Scavino with Contempt of Congress? An ordinary person who defied Congress would have been slapped in prison.
15. But what about the fact that Garland “refused” to prosecute cases handed to him by Mueller on a “silver platter?
16. Merrick Garland has proven that he cannot be trusted (or is corrupt) because of his position in E. Jean Carroll’s defamation lawsuit.
17. If all the criminals are not indicted and convicted, rule of law in America will be dead.

Part II: Theories about Merrick Garland

Part III: Nobody can Guarantee a Particular Outcome

Part IV: What we can expect going forward

* * *

PART I: FREQUENTLY ASKED QUESTIONS

#1: Why is the DOJ investigation taking so long?

A. There is a battle waging among Trump critics:

• Is Merrick Garland screwing up because he is too slow and cautious?
• Or is the method he has chosen the correct one under the circumstances?

I’ll start with the method the DOJ is using, and then analyze alternate strategies.

For perspective, a comparison with two other investigations:

Example 1: Watergate (a much simpler crime):

• June 17, 1972: Burglars were arrested in the act of entering the Watergate Democratic headquarters.
• July 24, 1974: The Supreme Court ruled that Nixon had to release the tapes to investigators.

Example 2: The Fulton County investigation

• January 1, 2021: Fani Willis is sworn in as Fulton District Attorney
• January 2, 2021: Trump makes his famous call to Raffensperger
• July 15, 2022: Fani Willis sent target letters to prominent Georgia Republicans informing them they could be indicted for their role in a scheme to appoint alternate electors pledged to Trump despite Biden’s win.

New reporting described Fani Willis as “moving rapidly in her investigation.” Her investigation is a fraction the size of what the DOJ is dealing with, an investigation Garland described as “one of the largest, most complex, and most resource-intensive investigations in our history.”

B. How Garland and deputy AG Lisa Monaco have described the approach used by the DOJ

On January 5, 2022, Merrick Garland said this:

“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.

But most important, we follow the facts — not an agenda or an assumption. The facts tell us where to go next.”

On March 10, Garland was even more explicit in an interview with NPR. In response to a question about whether he would shy away from indicting a former president, he said this:

“We are not avoiding cases that are political or cases that are controversial or sensitive. What we are avoiding is making decisions on a political basis, on a partisan basis.

We begin with the cases that are right in front of us with the overt actions and then we build from there. And that is a process that we will continue to build until we hold everyone accountable who committed criminal acts with respect to Jan. 6.”

“[We] are fully aware of how important this is. This had to do with the interference with the peaceful transfer of power from one administration to another. And it doesn’t get more important than that.”

“The only pressure I feel, and the only pressure that our line prosecutors feel, is to do the right thing, That means we follow the facts and the law, wherever they may lead.”

C. Sampling from a longer timeline

This is not a complete timeline of what the DOJ has done, but these highlights should give you a sense of what “work inward from the periphery to the center” means (or upward from the bottom, whichever metaphor you prefer).

On January 15, we learned from a defense lawyer representing insurrectionists that the DOJ was interested in people who had participated in the planning of January 6 (as opposed to the people on the ground who entered the Capitol.) Their interest included Rudy Giuliani and Roger Stone.

Rob Jenkins, a defense attorney representing multiple people linked to the Oath Keepers and Proud Boys, another far-right group, said:

 prosecutors have been “pretty aggressive” in “seeking out information . . . that points to others’ involvement and culpability.

On March 2,  the DOJ secured its first conviction for seditious conspiracy,

Joshua James, the leader of the Alabama Chapter of Oath Keepers, pleaded guilty to seditious conspiracy and obstruction of Congress for trying to prevent the peaceful transfer of power after the 2020 election.

Joshua James was not actually at the Capitol during the riot. He was one of the planners, which means one step toward the center from the periphery.

James’s 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.

Seditious conspiracy, by the way, is a big deal. Also, bringing down the leaders of paramilitaries is a big deal.

March 8, the DOJ secured a guilty conviction at trial for Guy Reffitt, who was found guilty of five felonies including traveling to the Capitol with an AR-15-style rifle and semiautomatic handgun, prepared for battle. On July 16, the DOJ sought a longer sentence for Reffitt, arguing that one of the rioters committed an act of domestic terrorism and, thus should get a heavier sentence of 15 years in federal prison.

(Fun tidbit: At the time of his sentencing, Reffitt’s wife looked directly into a reporter’s camera and told other defendants not to take a plea deal.)

March 30: Subpoenas for Officials in Trump’s Orbit

. . . in the past two months, a federal grand jury in Washington 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. . .

April 8: Another Proud Boy / Rally Planner pleaded guilty 

Charles Donohoe, a Proud Boys leader indicted in February along with Enrique Tarrio (chairman of the Proud Boys) changed his plea to guilty. He admitted to conspiring to help organize an attack on Congress by supporters of President Donald Trump and to assaulting law enforcement officers. He believed that storming the Capitol would achieve the group’s goal of stopping the government from carrying out the transfer of presidential power.

April 8: Ali Alexander, a guy who was heavily involved in planning the Stop the Steal rally (he wasn’t at the Capitol) revealed through his lawyer that he received a subpoena from a federal grand jury that is seeking information about members of the executive and legislative branches who were involved with the insurrection itself or who were involved the plan to obstruct the transfer of power.

April 27: We learned that Proud Boys member Louis Enrique Colon — who started planning to go to the Capitol weeks before the attack in December — decided to cooperate with prosecutors as part of a plea deal.

May 5: Another of the 11 people charged with seditious conspiracy along with Stewart Rhode, William Todd Wilson, pleaded guilty and agreed to cooperate. He was in a suite at the Phoenix Park Hotel with Stewart Rhodes on Jan. 6 when Rhodes put an unidentified Trump intermediary on speakerphone, and unsuccessfully tried to talk to Trump.

See? The idea is to get plea deals and cooperating agreements from people who were in the room when it happened. 

On May 26, 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 22, FBI agents searched the home of Jeffrey Clark, a former Justice Department official. (We learned this on June 23.) “Clark infamously tried to help Trump overthrow DOJ leadership and overturn the election, resulting in his taking the Fifth Amendment over 100 times in his deposition before the committee. Both the raid on his premises and the content of Thursday’s hearing suggested he had good reason.” The I.G. was involved, presumably because Clark was a member of the Justice Department.

Also on June 22: federal authorities seized the cell phone of John Eastman, the former attorney for Donald Trump at the center of the House committee’s investigation into the Jan. 6 Capitol attack. Eastman was the former law professor who wrote the memo on how Pence could overturn the election. (We found this out a week later because Eastman wrote a motion trying to get his property back.)

D. Getting to the Truth is a Process

Here is one way to get 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.

E. Cassidy Hutchinson’s process

(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, Hutchinson 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.

F. Pat Cipollone’s process

The DOJ is not talking about ongoing investigations, so nobody outside the DOJ really knows what is going on. Garland is running a tight ship, so people are speculating based on what they can see.

If the measure of whether to believe someone is how impressive their credentials are (and I don’t think it should be) Garland probably has the most impressive resume and track record. See, for his example, his work overseeing the Oklahoma Bombing case.

(Some of the people slamming Garland had positions of respect within the DOJ, many of the former prosecutors telling you that Merrick Garland is doing it wrong worked at a very low level and would not be considered for Garland’s job. To give you a sense of how many people can call themselves “former federal prosecutors,” at any given time there are more than 5,000 AUSAs (Assistant United States Attorneys).

A few of Garland and Monaco’s critics are so hostile that it almost seems as if they have some personal resentment, like this former AUSA with more than 100K followers, who said this after Monaco made a public statement on March 29:

 

If Garland is doing it wrong, what do his critics suggest instead? This former prosecutor explains: According to this former prosecutor,  the “highest point of insertion” is Trump and his inner circle (Rudy, etc.):

This person explains that there are enough witnesses to start with:

There are two problems I see with this method:

• What happens when the prosecution runs up against an element of the crime that happened behind closed doors, and all the witnesses plead the fifth? Isn’t it better to work up and get those with criminal liability to turn over evidence against co-conspirators?
• If the prosecutors start at the top and loop backward, the process doesn’t actually take less time. It would take the same amount of time. The only difference would be that the public would be aware immediately that Trump was under investigation. People would still be continually enraged because each time new evidence emerged about Trump’s involvement in the insurrection, people would shout, “Why hasn’t Trump been indicted yet?”
• If the prosecutors just skip all the people on the periphery, they will file indictments and possibly go to trial without all the evidence.

This brings me to Question #3:

#3: There is enough evidence now to indict Trump and members of his inner circle, so why doesn’t the DOJ just bring the indictments now?

I asked an experienced criminal defense lawyer Mark Reichel, to weigh in. Here’s what he said:

1. Once an indictment is filed, the government cannot use that indictment to develop more discovery or trial prep. That’s an illegal use of a grand jury. Because the defense can’t use their own grand jury, once an indictment is made, the prosecution can’t keep subpoenaing documents and people to testify. This is why the case needs to be airtight before there is an indictment.
2.  Admission by a party opponent. The government is a party. Government agents speak with just one voice across the country.  If an AUSA in one state calls a defendant a “liar” in a federal case there, and a year later that defendant is a witness for the government in a different state, the defense can admit the statement from the first case. In other words, the witness is now discredited because the government has made an “admission.”  To take an example, at a bail hearing, the prosecutor may say the worst things about the defendants who seek bail. Then, when these defendants “flip,” the government has discredited their testimony. This is why the government in a large complex case must take care in how they proceed.

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:

• 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 Capital where “unprecented mayhem ensued.”

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 that political speech is protected and the standard of proof in criminal trials is high.

On just those facts, Trump would have a First Amendment defense. He’d say that everything he said at the rally was “protected political speech” and besides, lots of politicians say “fight like hell,” and moreover, he also told the crowd to “be peaceful.”

No surprise, this was exactly the defense Trump presented at his impeachment trial.

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.

In other words, what happened was a lot more complex than what we thought at first. While these new details undermine the theory that it was Trump’s speech at the Ellipse that incited the attack and caused the damage, they point to even more culpability for Trump if the prosecution can show that Trump and the paramilitaries were co-conspirators.

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.

Defendants have the right to a speedy trial. So if the investigation is ongoing and the feds charge someone before all the evidence is gathered, and it takes too long to get the remainder of the evidence, the case goes to trial before all the evidence has been gathered.

An acquittal means it’s over because of the constitutional protection of Double Jeopardy. A person cannot be tried for the same crime twice. So if a person gets his trial and then later stronger evidence is uncovered, the prosecution can’t say, ‘We have more evidence so we want another try!”

Also, a defendant has a right to see all the evidence the prosecutor has because prosecutors can’t withhold exculpatory evidence. So if a person is indicted before the investigation is complete, the defense lawyer waltzes in, files a motion, and the defendant gets to see all the evidence already collected. Everyone else still being investigated also find out. Among other things, this enables them to coordinate their stories. So that might not be the best idea. When to bring indictments is part of the overall strategy.

Also, see this article for what can go wrong when filing too many indictments too quickly.

This person said:

We have something called the Rules of Evidence. These are the rules by which a court determines what evidence is admissible at trial. To take one example, journalists can rely on anonymous sources who speak “off the record” and don’t reveal their names, but a prosecutor cannot. It’s also not enough for the prosecution to have witnesses. The prosecutor must have credible witnesses able to withstand cross-examination.

In other words, much of what you see in news reporting is not admissible evidence. Assembling the evidence that can be presented in court is painstaking work and should be done before indictments are filed.

If you want a sense of what can happen at a hearing when the prosecution doesn’t have enough evidence, read this blog post about Marjorie Taylor Greene’s evidentiary hearing in Georgia.

A story about evidence

Now I’ll tell you a story that illustrates what can happen when evidence looks airtight, but a prosecutor rushes to trial without getting the whole story.

It’s 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 airtight 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 to 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.”

(At that moment, the prosecutor was not happy.)

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, he 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.

#4: The problem is that Merrick Garland is timid, weak, and too much of a centrist.

This comes from the view that an “aggressive” prosecutor would have already filed indictments by now. See the answers to questions #1 -3.

#5. Adam Schiff has been slamming the DOJ and he’s on the Select Committee.

The Select Committee investigating January 6 and the DOJ have been engaged in some backstage wrangling. I wrote about that here.

To that post, I’ll add that the DOJ’s task is much more difficult: The DOJ has to collect evidence to support each element of a crime beyond a reasonable doubt. The DOJ is bound by the federal rules of evidence. The January 6 committee is not. The DOJ witnesses have to be able to withstand cross-examination. The select committee witnesses do not. The DOJ will have to content with defenses. The January 6 committee does not.

#6. We need Trump convicted to keep him from running for office.

Nothing stops a prosecuted person from running for office. The 14th Amendment might apply, but even if Trump is indicted now, a trial could be six months away (or longer) plus appeals. (The Fourteenth Amendment has a clause that says that a person who rebels against the United States can’t run for office).

Also, what if the jury returns a verdict of not guilty? I thought the Kyle Rittenhouse case would cure people from thinking that indictment = conviction.

#7. The DOJ needs to speed things up because there is a looming election.

The midterms have nothing to do with the DOJ, which continues until at least January of 2025.

#8. Why doesn’t Garland create an allowable exception and announce that there is an investigation of Trump? This would reassure the public and settle everyone down.

The DOJ under Garland is refusing to talk about ongoing investigations.

Here is what the DOJ guidelines say:  “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.” The AG can make exceptions but has decided not to do so. (Remember when Comey deviated from these regulations and told Congress that the DOJ was reopening an investigation into Clinton? We were all properly horrified.)

Garland has frequently said he can’t say more because saying more could undermine the ongoing investigation.

But won’t making an allowable exception reassure the public?

The public does not consist only of Trump critics who want to see him prosecuted. Some members of the public do not want Trump investigated.

Anyone paying attention to the details in the court filings knows that the DOJ is reaching into Trump’s inner circle and has sought information about Trump himself. It seems to me that if news reporting properly covered this, the public would understand what is happening.

Such an announcement might not have a calming effect. It might create a media firestorm.

#9. I get that Merrick Garland wants to stick to the rule book, but our democracy is in danger so he needs to stop sticking by the book.

I see lots of versions of “You can’t go by the book when the book is burning.” I assume that the “book” is the rule book, the laws and norms.

In a talk at the University of Chicago, Lisa Monaco said it is particularly important to abide by norms and laws in times of heightened division and polarization because that’s how we preserve them and keep them strong, and it is when we most need them.

When asked how the department would approach potentially investigating high-level officials from a previous administration, she said, “The same way we investigate anyone. There is one set of rules.”

If both sides abandon rules and norms, who will defend those rules and norms? If both sides throw out “the book,” it entirely disappears.

If we don’t go by the book and follow preset rules, what do we go by? This brings us to the next question about how to maintain rule of law.

#10. If Merrick Garland doesn’t bring all the criminals to justice (quickly) rule of law in America will be dead.

This statement contains misunderstandings of the meaning of “rule of law” and the way the criminal justice system is designed.

How our criminal justice system was designed

Guilty people frequently get away with their crimes. To take one example, we have a thing called the exclusionary rule: If a search is carried out in violation of the defendant’s constitutional rights, the evidence is excluded at trial. If you committed a crime, and the only evidence against you was obtained by police in an illegal search, you walk free.

Moreover, the standard of proof at a criminal trial is high, and people who commit crimes often get acquitted simply because the prosecution didn’t have enough evidence to prove each element of a crime beyond a reasonable doubt. All of this is intentional. As William Blackstone famously said, “It is better that ten guilty persons escape than that one innocent suffer.”

The meaning of rule of law

Rule of law is the source of authority underlying democratic governments. German sociologist, in his essau Max Weber outlined 3 sources of authority.

1. Traditional. This is the authority underlying monarchies.
2. “Charismatic leader” (today, we’d say demagogue). This is the authority underlying dictatorships and fascist regimes.
3. Rule of law. This is the authority underlying democracy.

In an autocratic government, the autocrat decides who should be investigated and prosecuted. The way our government is structured, an independent prosecutor decides, ideally by following the rules in place.

Prosecutorial independence and prosecutorial discretion are cornerstones of our democracy. When I was representing indigents as a defense appellate lawyer, I rarely liked the decisions prosecutors made. I generally felt that they got it wrong. But as long as the prosecutor was making decisions by following guidelines and good judgment, rule of law was alive and well.

At this point, someone always tells me this:

#11. Rich white men never get held to account for their crimes.

Accuracy is important.

This is accurate: “The criminal justice system falls disproportionately on lower-income people and minority communities. Also: due to the hard work of criminal justice reformers, the situation is better than it was a few decades ago.

Here is an incomplete list of people in Trump’s orbit who were indicted, convicted, or pleaded guilty:

• Steve Bannon
• Peter Navarro
• The Trump Organization
• Allen Weisselberg (Trump Org CFO)
• Paul Manafort
• Michael Cohen
• Steve Bannon
• Michael Flynn
• Allen Weisselberg (under indictment)
• George Papadopoulos
• Rick Gates
• George Nader
• Lev Parnas
• Igor Frumn

“But Teri, none of this matters because . . .  ”

#12: Nothing else matters if Trump is not indicted.

If you don’t think that taking down white power militias that planned an attack on the Capitol with military precision, you have lost all perspective.

The problem with “nothing else matters” statements is that it all matters.

#13. Merrick Garland needs to hurry up. Because of his delays, much damage is being done to our democracy

The criminal justice system is not designed to solve political problems or end the threat of fascism. No matter how many members of Trump’s inner circle you manage to put in prison, and no matter how many white power militia leaders you take down, more will rise up to take their places. Fascists at the end of World War II came to horrible ends, but fascism came roaring back.

Take down a Donald Trump, and there will be Ron DeSantis, Josh Hawley, or Greg Abbott waiting in the wings.

#14. Why didn’t Garland charge Mark Meadows and Dan Scavino with Contempt of Congress? An ordinary person who defied Congress would have been slapped in prison.

Steve Bannon, Peter Navarro, Mark Meadows, and Dan Scavino were referred to the DOJ for contempt by the Select Committee. The DOJ charged Steve Bannon and Peter Navarro but not Mark Meadows and Dan Scavino.

Over the last four decades — even when Congress referred such an instance of alleged contempt of Congress to the Justice Department for prosecution — they were rarely charged, and those that did lead to convictions or pleas came undone.

Most people who blow off subpoenas get a fine. Federal penalties for defying a subpoena is a fine of not more than $200, or imprisonment not to exceed ninety days, or both, at the discretion of the court. Susan McDougal’s situation was different: She defined a grand jury subpoena and was imprisoned as a means of forcing her to comply. Criminal indictments are punishments. They are not intended to force compliance.

#15. 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.

The Obstruction Case

(1) 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.

Proving a crime requires enough evidence to prove each element of the crime (including the mental component) beyond a reasonable doubt.

(2) The statute of limitations has not expired because the crime is ongoing, so we don’t know whether this will be charged. It may be. It may not be.

(3) Depending on the strategy, the DOJ has good reason not to start charging some crimes while they are investigating others.

The Stormy Daniels Case

Cohen entered a plea bargain. This means that the prosecution never had to prove the facts of the case.

Michael Cohen committed the crime, but he said, “Trump told me to.” As far as I know, the only evidence against Trump is Cohen’s testimony and Cohen may be fairly easy to discredit. (He lied to Congress. He may be withholding incriminating evidence about himself.) It’s possible that the evidence doesn’t reach the standard required under DOJ regulations for bringing charges against Trump. If you doubt this, see my opening drug possession story.

There may be a good reason not to charge a small crime on thin evidence when a larger investigation is in the works, or Garland may have decided not to charge these crimes. We don’t know yet.

#16.  Merrick Garland has proven that he cannot be trusted (or is corrupt) because of his position in E. Jean Carroll’s defamation lawsuit.

For an answer, click on this post.

 

PART II: THEORIES ABOUT MERRICK GARLAND

One theory about Merrick Garland was put forward by Biden when he nominated Merrick Garland: Garland, as a Federal prosecutor, took on terrorism, corruption, and violent crime, always with the utmost professionalism and the duty to the oath he swore. And, as part of his background, Garland was selected as the Deputy Assistant Attorney General for the Criminal Division at the Department of Justice, and then as Principal Associate Deputy Attorney General. In these roles, he oversaw some of the most important federal criminal cases brought by the Department. 

Republicans have a different theory. If they come to power, they plan to impeach him for partisanship.

Trump critics rarely have a kind word for Merrick Garland. (In fact, I am definitely swimming against the current in seeking to understand and explain Garland instead of calling him names.)

People who think that Merrick Garland should already have indicted Trump come up with explanations for why he has not. These range from unhinged conspiracy theories to reasonable opinions.

A conspiracy theory explains an event or set of circumstances as the result of a secret plot by usually powerful conspirators. Conspiracy theories often offer satisfying or simple theories to explain complex phenomena.

Conspiracy theories about Merrick Garland include theories that Trump has not yet been indicted because:

• Merrick Garland is compromised
• Merrick Garland is corrupt and in the pay of plutocrats
• Merrick Garland has ties to criminal enterprises

Yes, large social media accounts that became large from attacking Trump are spreading rumors like these.

Theories about Merrick Garland that are based on pure speculation:

Here is an example. A former prosecutor offered an answer to the question: “Why hasn’t Attorney General Merrick Garland indicted former president Donald Trump?”

According to this former prosecutor, every “competent” prosecutor knows the “real” reason Trump hasn’t been indicted:

If Trump were charged, it’s unlikely he would negotiate a plea deal. Instead, he would go to trial and make every step of the process a platform to cast himself as a victim of a vindictive Biden administration. He would use the renewed attention to spew lies about the legitimacy of the 2020 presidential election. And he would raise money, lots of money, to fund his anticipated 2024 presidential campaign.

But most important, despite a mountain of evidence that would convict most people many times over, Trump would not be convicted. Criminal convictions require a unanimous verdict. On a 12-person jury, there are going to be Trump supporters.

So according to this former prosecutor, the “real” reason Trump hasn’t been indicted is that there’s likely to be a Trump supporter on the jury which means no conviction, and besides, Trump will use a trial to do some fundraising.

Theories about Garland that are Mischaracterizations:

A New York Times article with this headline sent shock waves across Trump critics in mainstream and on social media: “Hutchinson Testimony Jolts Justice Dept. to Discuss Trump’s Conduct More Openly”

Let’s read the article together, noticing the slant, and considering how the same information could have been presented. Here is the opening:

For the past year and a half, the Justice Department has approached former President Donald J. Trump’s effort to overturn the 2020 election results with a follow-the-evidence strategy that to critics appeared to border on paralysis — and that limited discussions of his role, even inside the department.

Then came Cassidy Hutchinson.

We get no hint about the source for “even inside the department.” Also, the DOJ strategy is characterized as “appearing to border on paralysis.” The implication of that opening is that Cassidy Hutchinson’s testimony changed something. Next, we get this:

The electrifying public testimony delivered last month to the House Jan. 6 panel by Ms. Hutchinson, a former White House aide who was witness to many key moments, jolted top Justice Department officials into discussing the topic of Mr. Trump more directly, at times in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco.

Okay, well, If the department is working its way toward the center and is focussing right now on Eastman, Jeffrey Clark, and whoever was in the Willard Room on January 5, it makes sense that they haven’t gotten to directly discussing Trump.

In conversations at the department the day after Ms. Hutchinson’s appearance, some of which included Ms. Monaco, officials talked about the pressure that the testimony created to scrutinize Mr. Trump’s potential criminal culpability and whether he intended to break the law.

Yes, it certainly sounds like this was the first time Garland and Monaco got the idea to scrutinize Trump’s potential criminal liability (even though they explained repeatedly that they would get to every single person who has liability, but they were working from the fringes to the center). The reporter offered this:

Ms. Hutchinson’s disclosures seemed to have opened a path to broaching the most sensitive topic of all: Mr. Trump’s own actions ahead of the attack.

But then, we learn this:

Department officials have said Ms. Hutchinson’s testimony did not alter their investigative strategy to methodically work their way from lower-level actors up to higher rungs of power.

So after all, Hutchinson’s testimony did not alter the DOJ’s investigative strategy. Given the context, it seems to me that “Jolted” is a subjective term that implies much, but means nothing. But here are examples of how people read the piece:

• Imagine being JOLTED into doing your damned job
• If true, it’s a blight on the DOJ.
• So they weren’t jolted by all the other evidence we’ve seen?

The article, which basically confirms the way the DOJ is proceeding, was repeatedly shown to me as conclusive evidence that the DOJ is totally screwing up.

Part III: Nobody can Guarantee a Particular Outcome

On the other side of the spectrum is the promise that “Justice is coming!”

I dislike these kinds of promises because “justice” can mean just about anything, and things can go wrong at every stage. Nobody can read the future. The best we can hope for from news media is accurate reporting on what is happening now, and that means less opinion and more facts.

Part IV: What we can expect going forward

Every time new information comes out showing that Trump is guilty of a crime, we can expect a chorus of angry people accusing Merrick Garland of not doing his job. I’m not sure much can be done about that at this point.

This person said:

I never said, “Garland has it.” I have no idea what is happening inside the DOJ, and neither does anyone else who is not working on these cases.

What I said is that Garland explained how the DOJ is conducting the investigation, what we’ve seen in the court filings indicates that the DOJ is doing precisely what Garland said it would do, and I see no evidence that the DOJ is screwing up or mishandling the investigation.

I also never said, “relax.” On the contrary, I’ve said democracy is in danger and the criminal justice is not equipped to solve a political problem. If you want to save democracy you need to get busy. Need ideas? See this post.

This person said:

I prefer to be called an “explainer,” thank you very much.

After I published this blog post, a person characterized my views in this way:That means it’s time for a mental health break, which is an item on my list of things to do (which you can see by clicking here).

If you got this far, you, too, deserve a mental health break.

Example of mental health break: