DOJ Investigation FAQs (March - May version)

I first posted this on March 13, 2022, and then revised it through May. The updated version is here.

Contents:

What Merrick Garland and DOJ Officials Say Is Happening
What We Know from Public Reporting is Happening
Media’s Love Affair with Former Prosecutors
Frequently Asked Questions
Nobody can Guarantee a Particular Outcome
Rule of Law is Boring
Part of the Problem is How We Get Our Information

I. What Merrick Garland and DOJ Officials Say Is Happening

Merrick Garland was confirmed by the Senate in March of 2021. As of now, more than 830 people have been charged in connection with the insurrection. People were complaining about the fact that only low-level people (those who actually stormed the Capitol) were being indicted.

In a speech given on January 5, 2022, Garland explained how the DOJ is conducting the investigation:

Everyone in this room and on these screens is familiar with the way we conduct investigations, and particularly complex investigations.

We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.

Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.

We follow the physical evidence. We follow the digital evidence. We follow the money.

Over 40 years ago in the wake of the Watergate scandal, the Justice Department concluded that the best way to ensure the department’s independence, integrity, and fair application of our laws — and, therefore, the best way to ensure the health of our democracy — is to have a set of norms to govern our work.

On March 10th, Garland gave an interview to NPR and was even more explicit:

Garland says the Jan. 6 investigation won’t end until everyone is held accountable.

In response to a question about whether he would shy away from indicting a former president, he said “We are not avoiding cases that are political or cases that are controversial or sensitive. . .”

On March 28, Deputy Attorney General Lisa Monaco said that the Jan. 6 investigation is “among the most wide-ranging and most complex that this department has ever undertaken.” Finally, she said that the DOJ wants to hire 131 more lawyers to help prosecute cases related to the Jan. 6 attack on the U.S. Capitol, and:

From the DOJ guidelines: “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.” Remember when Comey inappropriately talked about an ongoing investigation and everyone was really angry because talking about an ongoing investigation was against DOJ regulations?

That’s why Merrick Garland and Lisa Monaco can’t say any more.

On April 1, in response to a question about all the Democrats pressuring Garland to bring charges, he said “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.”

On May 18, we learned that in April, the DOJ requested information from the Select Committee Investigating January 6 saying that the interviews “may contain information relevant to a criminal investigation we are conducting.”

II. What We Know from Public Reporting is Happening

PRIOR TO MARCH 2, 2022

The DOJ brought charges against about 800 defendants involved with the Capitol insurrection.

MARCH 2, 2021: The DOJ secures its conviction for seditious conspiracy

On March 2, the DOJ secured its first conviction for seditious conspiracy, which is a big deal. For more about that, click here.

This means the DOJ took another step up the ladder: 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.

Four things are notable about this guilty plea. One, it’s a conviction. This is a lot better than an indictment, which is merely an accusation. Two, Joshua James was not actually at the Capitol during the riot. He was one of the planners. This takes us up a notch from those on the ground (who are easier to catch and convict because they were caught on tape.)

Third, James is cooperating with prosecutors, and including testifying to a grand jury.

Fourth, Joshua James was in Roger Stone’s hotel room the morning of the insurrection. That leads the investigators directly to Roger Stone.

Think of the J6 perpetrators as lined up on a ladder. At the bottom are the suckers who got swept up in the moment and illegally entered the Capitol. Next up, the vandals. At the very top are the people who strategized: “Let’s send an angry mob to the Capitol to scare Congress into stopping the counting of electoral votes.”

Ideally, the prosecutors want the people in the middle to plead guilty and turn over evidence about the people higher up.

March 30: Subpoenas for Officials in Trump’s Orbit

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. . .

This means that the start of the process of issuing these subpoenas was in January, about the time Merrick Garland made the speech in which he said investigators were starting at the bottom and working their way up, and won’t end until everyone is held accountable.

April 8: Another Proud Boy / Rally Planner pleaded guilty

Charles Donohoe, another of the Proud Boys leaders who was indicted in Februaryalong with Enrique Tarrio (chairman of the Proud Boys) has now changed his plea and is pleading 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. In other words, he was part of the planning (and part of the attack) and he admitted that the group’s goal was to stop the government from carrying out a peaceful transfer of power.

April 8: We learned about a subpoena issued by a grand jury (this means the DOJ is involved, not the January 6 committee). The subpoena is seeking information about members of the executive and legislative branches who were involved in the events or who may have helped to obstruct the certification of the 2020 election.

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 recently received a subpoena from a federal grand jury that is seeking information, including information about members of the executive and legislative branches who were involved with the insurrection itself or the plan to obstruct the transfer of power.

The significance of this subpoena is that it is evidence that the DOJ is looking at top-level people.

April 24: We learned that Alex Jones sent the DOJ a letter offering to give them information about January 6 in exchange for immunity.

The source of this information was Alex Jones’s lawyer (a criminal defense lawyer), not the DOJ, so we have to understand it as a defense spin. I can’t imagine he’d be of any use to the prosecution. Who would ever believe a word he says? The prosecutor would need reliable witnesses. One conclusion we can draw is that Alex Jones knows that the investigation is moving toward him. Indeed, the New York Times saw this as the latest sign of progress in the investigation:

April 27: Proud Boys member Louis Enrique Colon enters a plea deal and will cooperate with the investigation.

Proud Boys member Louis Enrique Colon — who started planning to go to the Capitol weeks before the attack in December — will cooperate with the criminal investigation into Jan. 6 as part of a plea deal. He agrees to tell everything he knows presumably in This means that Colon has information that the prosecutors want.

May 5: Yet Another Co-Conspirator is Cooperating

Another of the 11 people charged with seditious conspiracy along with Stewart Rhode, William Todd Wilson, has pleaded guilty and is now cooperating with the government.

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.

Okay, so. This means the DOJ is doing exactly what Garland said they’re doing. So why has everyone been so frustrated and angry?

A Question about Evidence

This is from Joe Lockhart, a White House press secretary under Clinton:

By just using evidence available on google, not thousands of prosecutors and subpoena power, I believe a first year law student could prosecute and win a conspiracy case against Trump and all his cronies for attempting to overturn an election. What is DOJ waiting for?

We have something called the Rule of Evidence. These are the rules by which a court determines what evidence is admissible at trial. To take one example, hearsay isn’t allowed. Journalists can rely on 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 because the witness has to be able to withstand cross-examination.

This means that most of what you read in the news isn’t admissible in court as evidence.

Assembling the evidence that can be presented in a court of law, while taking into account the evidence that the defense will present, is painstaking work — and as explained earlier, it has to be done before indictments are filed.

It’s possible a first-year law student might think this because the rules of evidence are generally taught as a second-year full-semester course.

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.

This reminds me of a story.

When my stepson was 12, I introduced him to my evidence professor. Later, my stepson said, “Did you notice he gave you a weird look?” Me: “No. Why did he do that?” Stepson: “You said he teaches evidence. You can’t teach evidence. Either it’s evidence, or it isn’t.” I told the story to my evidence professor who had a good laugh and said, “To think we wasted a full semester!”

Former Prosecutors As Legal Commentators

Social and mainstream media are carrying on a love affair with prosecutors. People say to me “XX is a former prosecutor who said XX, and a former prosecutor should know better than you, so there.”

In law school in moot court, I wanted to be the prosecutor because it was easier than defending a person accused of murder. I had a lot of studying to do, so I wanted the easier job.

There. I got that off my chest.

Different ways of seeing the evidence

Generally, the evidence looks weaker to a good defense lawyer than it looks to a mediocre prosecutor.

Mediocre Prosecutor: This evidence is airtight!

Good Defense Lawyer: Oh yeah? Let me show you the problems here.

I’ve known federal prosecutors who became defense lawyers and had to call me for advice on the simplest procedural steps (from Mark Reichel)

One former prosecutor, Michael Stern, wrote an article with this headline:

The Real Reason the Feds Haven’t Indicted 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. He would raise money, lots of money, to fund his anticipated 2024 presidential campaign.

And finally, “there is likely to be a Trump supporter on the jury, which means no conviction. . . ”

When I read that article, what I heard was this: “I’d never get a guilty plea so I wouldn’t want to bring the charges and have Trump get free publicity while I look silly.”

The DOJ has standards for determining whether to bring charges. There is nothing in the DOJ standards about who might be on a jury or whether the defendant will use the trial as a platform for raising money.

That former prosecutor, who passed off speculation as fact, revealed a lot about himself.

Here’s another former prosecutor, XX said, “aggressive” prosecutors don’t do things the way Merrick

Elie Honig, a former prosecutor and CNN commentator, said this:

What I heard was this: “If Biden had appointed me instead of Merrick Garland, I’d be doing a much better job of it. I’d go straight for Trump, because I’m aggressive.“

IV FREQUENTLY ASKED QUESTIONS

1. Garland isn’t doing anything. If he were, people would be getting subpoenaed and hauled before the grand jury and we’d know.

Not all witnesses are hostile. Many go willingly, and if the DOJ wants to keep things under wrap, they won’t subpoena hostile witnesses until they’re ready for the public to find out. Occasionally a witness will announce a subpoena, as happened on April 8, when Ali Alexander announced that he received a subpoena seeking information about members of the executive and legislative branches who were involved in the events or who may have helped to obstruct the certification of the 2020 election.

Also, prosecutors can get search warrants for electronic records and the defendant often doesn’t even know until he has been indicted and gets to see all the evidence the prosecution has gathered.

Mark Reichel added this:

Not all witnesses are hostile. In other words, some witnesses agree to testify or even want to testify. Such witnesses obviously do not “scream bloody murder.” If they testify, you might not hear about it. Also, the DOJ can use agent interviews.

Keep in mind that the DOJ can subpoena records (such as electronic mail) with a gag order so that the consumer doesn’t know. For an example, click here.

This investigation needs to be flawless. Your readers need to keep these things in mind:

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. So, since 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 Assistant US Attorney 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.” I use this all of the time. 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. I have made motions to dismiss a case based on the government press conference at the indictment, saying the government statements not only biased jury pool, but the statement chilled the right for the defendant to subpoena witnesses on his own behalf in accordance with the 6th Amendment.

Also, consider this: There were recently two high profile resignations in New York: Two prosecutors resigned and made public their reasons: They were frustrated that DA Bragg was refusing to indict Trump along with the Trump Org and the CFO Alan Weisselberg.

If in fact Merrick Garland was lying to the public and had no intention of investigating those close to Trump, it seems to me there would be rumbles and even resignations. I can’t imagine all of those DOJ lawyers sitting in silence as Garland lies to the public.

Here’s a headline quoting yet another famous former prosecutor:

2. “Garland should just indict what they have now and bring superseding indictments later.”

This person said:

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. WHAM other people up the chain 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.

Moreover, 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.

We also have constitutional protection called 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, ‘I need one more chance!” Double jeopardy means the prosecution only gets one chance.

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

3. “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.

4. “But we need 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.

5. “Sticking to the playbook is self-defeating.”

I assume that the “book” is the rule book, the laws and norms.

If Garland doesn’t go by the rules or “playbook” what does he do? What are the alternatives? The quickest way to end rule of law is for the DOJ to abandon the “playbook.” The way you save rule of law is with rule of law. You save democracy with more democracy, not less.

Cynics and fascists say, “Everyone disregards laws when it suits them.” According to this reasoning, if everyone cheats, the person who wins is the best cheater. This is why so many people embrace Trump even though they know he’s a cheater. They say, “He’s a cheater but he’s OUR cheater, and our cheater is tougher than your cheaters.”

If both sides abandon rule of law, then the cynics are correct: Both sides are the same. Everyone cheats, so it doesn’t matter who is in power, and it doesn’t matter who you vote for.

See the problem? If both sides throw out “the book,” it entirely disappears. This is how you make sure the people trying to destroy rule of law win.

6. But what about the fact that Garland “refused” to prosecute cases handed to him by Mueller on a “silver platter?”

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.

(3) I’ve already explained why the DOJ has good reason not to start charging some crimes while they are investigating others.

6. 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.

7. Trump has said awful things that need to be prosecuted because he’s dangerous

Good grief. First, we don’t arrest people for “dangerous speech.” We have a first Amendment, which even applies to famous people. The standard for “calls to violence” has been laid out by the Supreme Court in a case called Brandenburg v. Ohio, and it’s a difficult standard to meet. Rudy Guliani and Eric Trump raised a First Amendment defense when sued for the part they played in the January 6 insurrection, and prevailed: They got themselves dismissed from a Jan. 6 lawsuit based on their First Amendment defense. Trump, too, has a First Amendment defense, but the judge is letting the lawsuit proceed against him, which means his First Amendment defense is weaker (but he still has one).

Merrick Garland is aware of the First Amendment defense. I’ve written about that here.

Second, there is no “tipping point” for arrest. Prosecutors don’t make arrests until they are ready to bring charges.

8. The J-6 Committee handed down Contempt of Congress referrals for Mark Meadows and others. Why the heck hasn’t anything happened yet?

Here is what Merrick Garland said when asked an “off-topic” question about Meadows on April 1, 2022: “We don’t comment on ongoing referrals. This was a referral. And we’re not able to comment on that.” (He choose his words carefully. He is not permitted, under DOJ guidelines, to say that a person is under investigation. So he used the word “ongoing” to describe the “referral.”

To begin with, the DOJ doesn’t need a referral to act.

The DOJ will not act on a referral if (1) there is an ongoing investigation and (2) bringing charges now will interfere with that investigation. Congress can make recommendations but prosecuting decisions are up to the prosecutors, not Congress. These are separate branches of government.

We can speculate on why nothing has happened yet:

There may be other charges for Meadows that the committee is considering, which means that the DOJ isn’t ready yet to bring an indictment.
- The DOJ may hope Meadows will cooperate.
- It’s possible that the DOJ is being completely negligent, but if so, I’d expect some protests or resignations from frustrated prosecutors.
- Repeat the above for each of the other defendants.

I think it’s safe to assume that anyone obstructing the select committee either

has criminal liability, or
- is withholding pertinent information to protect someone else.

The question is what, who, and why. Rushing to indict for contempt is not the best way to answer those questions.

10. The January 6 committee is frustrated with Merrick Garland which means something is seriously wrong with Merrick Garland

If members of the committee don’t know why charges haven’t been brought yet, maybe it’s because the DOJ isn’t keeping them in the loop.

If you wanted to keep an investigation airtight, would you share it with members of a Congressional committee?

Remember what happened when Comey talked to Congress about an ongoing investigation?

Now everyone expects Garland to do the same.

G: Conclusion: The Weight of the Evidence Tells me that Garland is Telling the Truth.

If someone presents me with solid evidence that Garland is not telling the truth and the DOJ has concluded that he isn’t going to reach any higher on the ladder, I will revise my conclusions.

This doesn’t mean I am saying, “Trump will be indicted” or “Trump will be convicted” because, for the reasons I give in the next section, nobody can guarantee a particular outcome. Garland can’t promise an outcome. An investigation that announces the conclusion while it is midway is a fixed investigation. That’s what happens in places like Russia. Law enforcement first concludes a person is guilty and then conducts an investigation. We don’t want to be like that.

If someone presents me with solid evidence (not innuendo or speculation) that Garland is not telling the truth and the DOJ has concluded that he isn’t going to reach any higher on the ladder, I will revise my conclusions.

V. Nobody can guarantee a particular outcome.

On the other side of the spectrum are promises that “justice is coming!”

Remember those crazies who plotted to kidnap Michigan Gov. Whitmer? At the conclusion of their trial, the jury acquitted two of the men, and the jury hung on two more. (A hung jury means that the jury could not reach a unanimous decision.) So two of the men walk free. Two will probably be retried.

All kinds of things can go wrong at trial. Trials are unpredictable. Juries are unpredictable.

People demand indictments and think if every guilty person isn’t imprisoned, the system is a failure. Juries are unpredictable. Sometimes the defense succeeds. Sometimes a person can be guilty but there just isn’t enough admissible evidence to prove it. (Evidence that is admissible in court, as opposed to Google Evidence.)

People are discovering what every defense lawyer knows: Prosecutors have a lot of power. They made their decisions, and we’re stuck with them. I often believed that prosecutors were making the wrong decision (particularly when they went after myclients).

Each form of government must decide who makes prosecutorial decisions. In an autocracy, the autocrat decides. In an era of mob rule, the mob decides. When a mob decides, it’s called lynching, which means a person is convicted and punished without due process.

Our system is frustrating because the prosecutor decides, and they don’t always make the decisions we’d like.

But you know what? As frustrated as I have felt with prosecutors during my career doing defense work, I was never able to think of a better system.

It seems obvious to me that prosecuting someone based on large numbers of furious social media posts would be a terrible idea.

The term for what we have is prosecutorial independence and prosecutorial discretion. Ideally, the prosecutor makes his or her decision based on guidelines, including ethical guidelines, and the strength of the evidence. They should resist political pressure. Garland was trying to establish prosecutorial integrity when he said “We are not avoiding cases that are political or cases that are controversial or sensitive. . .”