A list of the questions I answer is at the end.
PART I: FREQUENTLY ASKED QUESTIONS (and comments requiring a response).
I have now updated this twice. The original version from March is here. The July 17 version is here.
#1: Why is the DOJ investigation taking so long?
This is how Garland explained how the DOJ is proceeding with the investigation into the events of January 6, 2021.
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:
Garland emphasized the importance of the investigation:
On April 1, in response to a question about all the Democrats pressuring Garland to bring charges quickly, he said:
On July 20, Garland answered two questions.
Question: “You have said time and time again that your approach is to move from the bottom up and go where the evidence leads you. Recently people have posited alternative ways to go about this. One is called the hub and spoke notion: Targeting the people around Trump and then considering the rioters as one spoke and looking at the electors as another spoke, can you just explain to us if there was a decision made early on when you decided to go the way you did, and why you rejected other potential paths?”
Garland: “There are a number of assumptions based in that leading question (which I’m very familiar with as a trial lawyer).”
There is a lot speculation about what the justice department is doing, what it’s not doing, what our theories are, what our theories are, and what our theories aren’t.”
And there will continue to be that speculation. That’s because a central tenet of the way in which the justice department investigates, and a central tenet of the rule of law, is that we do not conduct our investigations in public.”
“This is the most wide-ranging investigation and the most important investigation that the Justice Department entered into, and we have done so because this effort to upend a legitimate election transferring power from one administration to another cuts at the fundamentals of democracy.”
“We have to get this right.”
“For people who are concerned (as I think every American should be) we have to do two things.”
“We have to hold accountable every person who is criminally responsible and we must do it in a way filled with integrity and professionalism, the way the justice department conducts investigations.”
“Both of these things are necessary to protect our democracy.
Question: “Do you think you have enough resources to do that? We know that the budget request you filed earlier this year was not complied with.
Garland: “The Justice Department would always like additional resources and would be happy to take them, but we are going to accomplish our mission here. The people in the Justice Department are committed to this. They are working 24-7 on this.
On July 22, Lester Holt interviewed Merrick Garland. Holt asked Garland if he learned anything new from the J6 hearings. Garland said the DOJ and the Committee have both been engaging in wide-ranging investigations so:
(Recall that the New York Times article that reported that the DOJ was “jolted” into action by new information from the J6 televised hearings, also reported that a DOJ spokesperson said that the new information hadn’t altered how the DOJ was proceeding with the investigation.) Garland confirmed that the DOJ is proceeding the same way it has been from the beginning. Thus Garland’s response (no surprise) confirmed what the DOJ spokesperson said: There was nothing that “jolted” the DOJ into changing course.
Holt asked Garland about people criticizing the way the DOJ was conducting the investigation. Garland said:
The reason there is this speculation and uncertainty is that it’s a fundamental tenet of what we do as prosecutors and investigators is to do it outside of the public eye.”
(Because speculation means “forming a theory or conjecture without firm evidence,” Garland, by referring to the criticism as “speculation,” dismissed it as not being based on fact. He (tactfully) explained that his critics don’t have the facts, so all they can really do is speculate. (Garland knows the facts, but he’s not telling.)
Lester Holt also asked Garland whether criminal referrals from the committee would matter to the DOJ. Very tactfully, Garland said no. He said whether the committee makes referrals is up to the committee, but referrals have no legal significance.
Asked how he feels about the criticism he’s getting that the DOJ isn’t moving quickly enough, he said the DOJ has been “urgently” pursuing these cases from the beginning.
Garland repeated that he doesn’t care if someone is a former president or candidate for office, he intends to hold everyone accountable who is criminally responsible for the events of January 6.
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 start with “the overt actions and then we build from there” means. I often list when we learned something instead of when it happened (because we often find out later and don’t know exactly when something happened).
As of January 1, 2022, more than 700 people had been indicted for participating in the attack on the Capitol.
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, after securing more than 800 convictions for a variety of crimes, crimes, the DOJ secured its first conviction for seditious conspiracy, which is a big deal. Seditious conspiracy means conspiring to overthrow or oppose the authority of the government by force.
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: After his conviction, Reffitt’s wife looked directly into a reporter’s camera and told other defendants not to take a plea deal.)
March 30: We learned that “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 — was cooperating 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.
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.
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.”
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.)
(Yes, the DOJ is overseeing this as part of the plot to overturn the election. The IG was involved, most likely because the plot concerning Eastman and Jeffrey Clark had to do with corruption inside the DOJ.)
July 21: 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. (We learned this on July 25)
July 26: We learned that in April the DOJ investigators received the phone records of key officials and aids in the Trump Administration, including Trump’s former chief of staff, Mark Meadows.
(Notice that we didn’t learn about this in April. We learned about it in July)
July 28: We also learned that prosecutors told witnesses Marc Short and Greg Jacob that they will set aside a certain category of questions about Trump and get back to them on those after they take a few legal steps. The questions at issue had to do with “their direct interactions with Trump.”
August 2: We learned that a federal grand jury has subpoenaed former Trump White House counsel Pat Cipollone in its investigation into the Jan. 6 assault on the U.S. Capitol and efforts to overturn the 2020 election.
August 9: FBI agents seized Rep. Scott Perry’s phone.
August 10: The FBI delivered subpoenas to Pennsylvania lawmakers.
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.
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, 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.
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.)
John Eastman’s Process
In her opening remarks on July 12, Cheney explained how the Trump defense strategy is evolving:
“Initially their strategy was to delay and deny . . . Now the argument seems to be that Trump was manipulated by others outside the administration, that he was persuaded to ignore his closest advisers, and that he was incapable of telling right from wrong. This new strategy is to try to blame only John Eastman or Sidney Powell or Congressman Scott Perry or others and not President Trump. In this version, the president was “poorly served” by these outside advisers. The strategy is to blame people his advisers called “the crazies” for what Donald Trump did.”
Then, as if on cue, Geraldo Rivera proved Cheney correct by Tweeting: “Before he fell under the malignant influence of a trio of fringe advisors, President Trump . . . [was prepared to concede, instead, he led us to a constitutional crisis.”
See how these two things are coming together to create a situation where Eastman may be thrown under the bus by Team Trump at precisely the time he must decide whether to cooperate with the prosecutors who seized his phone?
When the conspiracy is this complicated, the full story doesn’t materialize at once.
I commonly see this maxim misused. “Justice delayed is justice denied” refers to instances in which the remedy takes so long that the injury cannot be redressed. For example, let’s say a person is sick, and restful sleep will prolong the person’s life, but the neighbors are violating curfews by having loud parties 24-7. If the trial and appeals take a year, and the person dies after three months because of the noise, justice was denied because the process took too long. This is why we have preliminary injunctions to prevent irreparable harm if a lengthy process means there will be irreparable harm.
“Justice delayed means justice denied,” absolutely does not mean “I want them all locked up sooner so how DARE they keep appealing?” or “I’m really frustrated that indictments were not brought when I thought they should be brought.”
There. I got that off my chest.
#2: A former prosecutor (or another legal expert) said Merrick Garland is doing it wrong, therefore, Garland must be doing it wrong.
People say to me, “XX is a former prosecutor, and he said Garland is screwing up, therefore, Garland is screwing up.”
My question: Why do people assume the former prosecutor is right, but Merrick Garland is wrong?
First, a word about “former prosecutors.”
Many of the former prosecutors slamming Garland worked at low levels and would in no way be qualified 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). Many of the prosecutors saying that Garland isn’t “aggressive” enough probably really believe that, but they were not appointed AG (they probably were not even considered for the position) and were not invited to join the team.
If you consider Garland’s resume and track record, it doesn’t make a lot of sense to automatically assume that a former prosecutor knows more than Garland, particularly because the former prosecutor doesn’t know what is going on inside the DOJ, but Garland does.
This person asked:
I blacked out the name of the former prosecutor.
This is an accurate statement intended to educate people about how the DOJ works, “The DOJ must take care before it brings an indictment for a number of reasons, including . . . (etc.)”
This is a statement intended to rile an audience: “The perfect is the enemy of the good. Unless it’s a slam dunk the DOJ will shy away from pushing forward.”
Explanation: There are legal standards that the DOJ follows for when to bring indictments. The evidence must meet a particular standard. “Slam dunk” is not a legal standard because the prosecution cannot know what the defense has. It would not be “good” to bring weak cases. Continually charging people with crimes and then being unable to prove the crimes in court would cause the government to lose credibility and would waste public resources. Also important: Charging a person with a crime is often enough to run that person’s life and/or cause the person to go bankrupt fighting the charges even if the person wins an acquittal. So they don’t bring weak cases.
(My take on all such pronouncements by former prosecutors is that they say more about the prosecutor than the DOJ. I’d guess that the above former prosecutor frequently wanted to charge weak cases and his supervisors wouldn’t let him.)
The implication in the above clickbaity statement is that the DOJ will shy away from charging Trump because they only want “slam dunks.” If that is true, Merrick Garland lied when he said “we hold everyone accountable who committed criminal acts with respect to Jan. 6.” Essentially the person is calling Merrick Garland a liar without any grounds.
It’s possible that Garland is screwing up, but the opinion of a “legal expert” or former prosecutor who does not have any inside information is not evidence that Garland is screwing up.
Some of the former prosecutors who are slamming Garland keep getting facts wrong about the investigation. To take a very simple example (so I don’t take too much of this blog post with this) a former prosecutor who worked under Mueller said this:
His argument is that Garland is not being honest: Garland says the DOJ won’t talk about ongoing investigations, but the DOJ “announced” the fake elector investigation.
In fact, what happened was that the fake elector case was referred to Lisa Monaco and when it was referred, she said, “We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more on ongoing investigations.”
In other words, all Monaco did was acknowledge a public fact (the fake elector matter was referred to the DOJ) and then said she can’t talk about ongoing investigations.
So this guy is building an argument that Garland is not being honest, but his argument is based on incorrect facts.
A few of Garland and Monaco’s critics are quite hostile. like this former AUSA with more than 100K followers, who said this after Monaco made a public statement on March 29:
You can read Monaco’scredentials here.
There is more than one way to conduct an investigation. If Garland is doing it wrong, what do his critics suggest instead? This former prosecutor explains:
This person explains that there are enough witnesses to start with:
There are three 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 difference is that the investigation would happen in public, which would be terrible for the integrity and effectiveness of the investigation.
- 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?
To begin with, much of what you see in the news (and even much of what you heard in the J6 hearings) would not be admissible evidence in a criminal court. For more on that, see this post entitled “Proving a Crime in Court v. Proving a Crime in the Media.)
I asked an experienced criminal defense lawyer Mark Reichel, to weigh in. Here’s what he said:
- 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.
- 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 Capitol where “unprecedented 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. And 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.
Two stories 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 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. A client 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 drew 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.
We sent the calculations to the prosecutor. Some time passed, and then charges were dropped. I assume they verified the calculations. Basically, she was going fast–but not that fast.
The prosecutor could have refiled the charges, accusing her of going at a 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 deliberately 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.”
[Adding snark: I would not be surprised if the prosecutor who filed the misdemeanor charge against my client is on TV as a former prosecutor saying that Garland should be more aggressive and file what he has right now and collect the rest of the evidence later.)
#4: Adam Schiff has been slamming the DOJ, and he’s on the Select Committee, so he should know.
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 time-consuming: The DOJ has to collect evidence to prove 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 contend with defenses. The January 6 committee does not.
#5: It’s obvious that the DOJ picked up the pace because of pressure from the January 6 Select Committee’s televised hearings.
Confusing chronology with causation is a common logical fallacy.
If I stub my toe and then feel a searing pain through my foot, it is logical to assume that stubbing my toe caused the pain. On the other hand, if I stub my toe, and immediately afterward my phone rings, it would be silly to conclude that stubbing my toe caused the phone to ring. The lesson is that if two events occur in succession, that does not necessarily mean that one caused the other.
A well-known former prosecutor (someone I know to be very smart) went on television in early August and said that the fact that a grand jury was hearing evidence about Trump in late July and early August, meant that the DOJ was picking up the pace because of public pressure.
A look at just a few items from the timeline and the DOJ’s own definition of how grand jury proceedings work debunk that idea:
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.
On March 30, on March 30, we learned that “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.”
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 9, the select committee held its first televised hearing.
On July 25: 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. (We learned this on July 25)
Keep two things in mind:
- It is illegal for anyone inside of the DOJ to leak information about a grand jury, so the only information we have comes when witnesses decide to talk to the press. In other words, we don’t know everything happening.
- The DOJ website offers this explanation of grand juries: “After the prosecutor studies the information from investigators and the information they gather from talking with the individuals involved, the prosecutor decides whether to present the case to the grand jury.” In other words, a grand jury is not the first thing that happens in an investigation. It happens after investigators have done their work and spoken to witnesses.
On August 3, a well-known former prosecutor appeared on a cable news show that the DOJ and said “certainly the select committee deposition spurred the justice department along.” (I will not include the link. Enough people read this blog, and I have no desire to call out individuals, other than to say in general that a lot of sloppiness happens out there and it should stop.)
In this case, first the phone rang, then the person stubbed her toe, but the commentator wasn’t paying much attention and concluded that the phone rang because the person stubbed her toe.
#6. We need Trump indicted to keep him from running for office.
Nothing stops an indicted person from running for office. After conviction, 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. If the Republicans win the House, they can pull shenanigans like impeaching Garland. Removal requires 2/3 of the Senate, so Garland would be able to ignore the entire thing. Now Republicans are talking about doing something utterly destructive if they win in 2022, like defund the DOJ and the FBI. With Biden in the White House, there would be ways to try to mitigate the damage, but it seems to me the obvious solution is to make sure the Republicans don’t win.
At any rate, rushing an investigation and indictment and thereby making it more possible that they will lose in court because the Republicans are threatening to be destructive may not be a good idea.
#8. Why doesn’t Garland announce that he is investigating Trump to reassure the public?
To begin with, the public does not consist only of Trump critics who want to see him prosecuted.
The larger point, as Merrick Garland has pointed out, the DOJ doesn’t investigate people, it investigates crimes. Obviously, investigating crimes leads to indicting people, but here’s the problem with investigating people:
Saying “we are investigating X people,” instead of “we are investigating X crime” means starting with your conclusion instead of being led there by the evidence.
Recall that Trump wanted Zelnsky to investigate a person (Biden’s son).
As this person said:
#9. Okay, so why doesn’t Garland just say more about what is happening?
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.
Moreover, it’s actually a crime for investigators and prosecutors to leak to the public what happens in a grand jury. A witness can talk, but not the prosecutor. One reason is to protect the innocent.
From former prosecutor Elizabeth de la Vega (she is referring to another former prosecutor who thinks that Garland should talk more about the investigation):
I’ll add that it can also harm innocent people (and others) if they are named in an investigation only to have the prosecution decide that there is no case against them (as with Hillary Clinton’s emails when Comey announced that he was reopening the case).
In an interview on July 26, Garland said that there will be speculation about the investigation because of the nature of the investigation: It must be conducted outside of the public view, for two reasons: (1) To protect the civil liberties of the people they are investigating and (2) to ensure the success and integrity of the investigation.
Garland’s view is that the way the public will be reassured is by conducting the investigation with integrity so that whatever results came from following the evidence and not targeting a particular person.
#10. 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.”
Yes, the Republican Party has abandoned rules and norms. But 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.
Garland, recall, said that to achieve justice and protect democracy the DOJ must do two things: (1) Hold accountable every person criminally responsible for trying to “upend a legitimate election,” (2) do it in a way with integrity and professionalism.
“Do it in a way with integrity and professionalism” means going by the book.
#11. If Merrick Garland doesn’t bring all the criminals to justice (quickly) rule of law in America will be dead.
The corollary to this is, “‘Nobody is above the law’ means everyone guilty gets punished.”
These statements 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
The system is not designed to punish all guilty people. For example, 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 sometimes 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 Max Weber, in his essay “Politics as a Vocation,” outlined 3 sources of authority.
- Traditional. This is the authority underlying monarchies.
- “Charismatic leader” (today, we’d say demagogue). This is the authority underlying dictatorships and fascist regimes.
- Rule of law. This is the authority underlying democracy.
In an autocratic government, the autocrat decides who should be investigated and prosecuted. In an era of mob rule (lynchings) the mob decides. The way our government is structured, an independent prosecutor decides, ideally by following the rules and guidelines 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 prosecutors make decisions by following guidelines and not abusing their discretion, rule of law is alive and well.
#12: A GOP Attorney General would have brought charges by now, and Merrick Garland should be more like a GOP Attorney General
A large pro-democracy account tweeted this:
(I’m sure the above tweeter meant “former president,” not “sitting president,” because a Democratic president would have a Democratic AG, but it’s clear what he means.)
The above is often phrased like this, “Merrick Garland is weak and timid. We need a tough attorney general.”
One of the most alarming things Trump did as president was to weaponize the DOJ. For me, that was one of the most chilling moments, because, as frustrated as I’ve often felt with the criminal justice system, I never imagined that our criminal justice system would turn into one in which the AG did the bidding of the president and went after the president’s political enemies.
In fact, this same person said this about Trump’s DOJ:
Now this account is comparing Merrick Garland to William Barr and literally criticizing Garland for not being more like Barr.
The idea that we need to act like fascists in order to destroy fascism is wrong on multiple levels. “We hate the Nazis so we have to act just like the Nazis so we can destroy them quicker” turns both sides into Nazis. This, in fact, is the quickest way to destroy democracy.
During the Trump era, we learned a lot about what scholar Ruth Ben Ghiat calls the “strongman,” (which is what Max Weber calls the “charismatic leader,” or what we would call a demagogue.)
It seems to me that “Merrick Garland is too weak and timid,” is literally pining for a strongman instead of a lawman. What this shows me is how attractive a strongman is, and why people want one. A strongman will blow through the rules and get things done. Democracy, in contrast, is slow, tedious, and boring, and you don’t always get what you want.
#13. 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 . . . ”
#14: What stops rich white men from “using the court system to run out the clock?”
This person asked:
First, let’s talk about the phrase, “using the court system.”
All people have the right to have access to the courts. All people have the right to bring their cases to court, including people you don’t like. I’ll go farther: all people especially people you don’t like. It’s always easiest to deny due process to unpopular people. As soon as you deny due process to anyone you are undermining the concept of rule of law.
Personal note: For more than 12 years, I maintaining a private legal practice devoted 100% to representing indigents on appeal. That means that I handled appeals for people who had the right to an appeal, but couldn’t afford to pay. All of my clients had lost at the trial level. Because of the nature of my appellate practice, none of my clients were “rich,” therefore, I never represented a “rich white man.” My clients, however, were often unpopular in their communities (to say the least) and some had been convicted of heinous crimes. No doubt there were people who believed I was wasting the court’s time and public money on behalf of undeserving people.
Incidentally, The appeals I handled, even in simple matters, often took a year to work through the courts. Trump’s cases since he left office have, in fact, been expedited.
The phrase “running out the clock,” has no meaning in general. Appeals and court cases can take a long time but are eventually resolved. In the case of insurrectionists, it could mean that if an insurrection-loving president is elected again, he (or she) will pardon everyone. In that case, such pardons will be the least of our problems.
#15: 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.
#16. 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.
#17. Why didn’t the DOJ prosecutors charge Mark Meadows and Dan Scavino with Contempt of Congress?
Short answer: We don’t know. I’ve seen good guesses, and I’ve seen silly guesses.
The facts: 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 (who has now been convicted on two counts) and Peter Navarro but not Mark Meadows and Dan Scavino.
Bad guess: The DOJ is failing. If an ordinary person like me blew off a congressional subpoena, I’d get slapped in jail.
Ding ding ding. False.
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 defied 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.
Guesses that make sense:
- The cases against Meadows and Scavino were weaker and/or they had good defenses.
- They’re cooperating with the investigation.
- They’re part of something larger and the DOJ isn’t ready to indict them.
#18. 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
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.
As Barb McQuade explained, Mueller was careful not to accuse Trump of a crime when he couldn’t be charged (and have a chance to defend himself).
The reason Trump wasn’t charged was because of Barr, not Merrick Garland.
