The Washington Post “Bombshell” about Merrick Garland

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You can read The Washington Post article free through my subscription by clicking here. The sources for the piece are DOJ insiders who disagree with Garland’s approach. The article, therefore, is slanted in favor of their view.

What we learn is this: There are DOJ insiders who disagree with Merrick Garland’s approach, and FBI agents who “resisted” opening an investigation into Trump.

I hate to be a spoilsport, but we already knew these things, and there is no bombshell.

If you are a strong critic of Merrick Garland and you believe he is weak, timid, and afraid of “appearing partisan,” it seems to me that a logical response to this article is: “See! People inside the DOJ agree with me that Garland is screwing up.”

An illogical response to this article would be, “See! There is proof that Garland is screwing up. I knew it all along. I TOLD EVERYONE that Garland was screwing up and now we have a well-sourced article confirming that.”

Okay. Let’s look closely at the article. Here is the headline:

FBI resisted opening probe into Trump’s role in Jan. 6 for more than a year

Here is a fact from outside the article:

On January 15, 2022, we learned from a defense lawyer representing insurrectionists (Rob Jenkins) that the DOJ had been “pretty aggressive” in “seeking out information . . . that points to others’ involvement and culpability” in planning the events of January 6, including Rudy Giuliani and Roger Stone.

(We don’t know when that happened, but it was obviously before January 15, 2022. One year earlier, on January 15, 2021, we were still in the Trump administration.)

Here is the subheading:

In the DOJ’s investigation of Jan. 6, key Justice officials also quashed an early plan for a task force focused on people in Trump’s orbit.

Here is the incident referred to in the headline

Sherwin, senior Justice Department officials, and Paul Abbate, the top deputy to FBI Director Christopher A. Wray, quashed a plan by prosecutors in the U.S. attorney’s office to directly investigate Trump associates for any links to the riot, deeming it premature . . . Instead, they insisted on a methodical approach — focusing first on rioters and going up the ladder.

We already know that Garland and the DOJ adopted the “going up the ladder” approach. On January 5, 2022, Merrick Garland explained it this way:

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.   

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

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.

Translation: Garland insisted on applying the same rules to investigating Trump that are applied to all complex investigations. Rule of law, in fact, means that rules are equally applied, no matter who is being investigated.

We can assume, I think, that Garland also believed this was the best approach. (For more on this, see my FAQ page.)

On March 5, 2022, Garland gave an interview to NPR and said: “The investigation won’t end until everyone is held responsible.” 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. What we are avoiding is making decisions on a political basis, on a partisan basis.”

On July 2022, Merrick Garland said this:

“We do not do our investigations in public. This is the most wide-ranging investigation and the most important investigation that the Justice Department has ever entered into…We have to get this right.”

The Washington Post article also includes this “evidence.” In March of 2021, there was a meeting:

Hours after he was sworn in as attorney general, Merrick Garland and his deputies gathered . . . for a private briefing on the investigation he had promised to make his highest priority: bringing to justice those responsible for the attack on the U.S. Capitol on Jan. 6, 2021.

Michael R. Sherwin gave a presentation in which he “neglected to mention Trump or his advisors.” He also prepared an 11-page report for Garland in March of 2021 in which he also neglected to mention Trump.

I suggest that this is evidence that Trump was not mentioned in the 11-page report. It is, however, not evidence that Sherwin had decided not to investigate Trump.

We learn from the article that in February 2021, before Garland was sworn in, Cooney put forward a plan: Go straight for the top with the fake elector scheme. But others didn’t like it. “All who assembled for the meeting were in agreement, with Axelrod making the final call: Cooney’s plan would not go forward.”

Garland and Monaco, after they were sworn in, agreed not to start with the fake elector scheme.

We never learn why they didn’t want to start with the fake elector scheme. (At least as early as May 25, 2022, the DOJ was looking into the fake elector plot.)

But we do find out that “some in the group” felt that “Seeking the communications of a high-profile Trump ally such as Stone could trigger a social media post from Trump decrying yet another FBI investigation as a witch hunt. And what if the probe turned up nothing?”

Translation: Starting from the bottom up avoids that scenario (which would cause the DOJ to lose credibility in the eyes of the public and thereby undermine any future indictments) by allowing prosecutors to make sure there will be evidence of a crime where they look for it (because they can’t keep fishing).

From the article: Garland, Monaco, and Wray “remained committed to [the bottoms-up approach] even as evidence emerged of an organized, weeks-long effort by Trump and his advisers before Jan. 6 to pressure state leaders, Justice officials and Vice President Mike Pence to block the certification of Biden’s victory.”

Translation: Garland and Monaco stubbornly insisted on keeping to their course.

The article also suggests that Garland changed his approach after the January 6 hearings in mid-2022. One author of the piece, Carol Leonnig, said this on Twitter:

Many people inside DOJ strongly believe this. As one told us – “without the Jan 6 committee I’m convinced there wouldn’t have been a DOJ investigation into Trump’s role.”

(See? She is saying that the support for the article is that “many people inside the DOJ strongly believe this.” Me: so what? does everyone always agree with the boss?)

What undermines the idea that the J6 hearings (beginning in June of 2022) jumpstarted an investigation into Trump’s inner circle is this reporting from March 30:

March 30, 2022: 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.“

What we learn is that “many people inside the DOJ strongly believe” that “without the January 6 committee there wouldn’t have been a DOJ investigation into Trump’s role.”

We do not learn that “without the January 6 hearings, there wouldn’t have been a DOJ investigation into Trump’s role.” (And actual facts undermine this take.)

No surprise (given that the sources are people in the DOJ who dislike Garland’s approach) the language used to describe Garland’s approach is slanted toward the viewpoint that the bottoms-up approach is motivated by timidity and fear:

What does “slow-paced” actually mean? Does it mean that if you work from the bottom up it takes longer to get to Trump? Or does it mean that people did less work, dragged their feet, and took long lunches and holidays? (The article mentions the sheer number of prosecutions being brought by this DOJ and the long hours Garland works, so “slow-paced” is a judgment on the method not a factual description. Bottom-up is actually more work, so the description “slow-paced” is slant.)

The article tells us that an “obstacle” in the document case was that “FBI agents . . . resisted raiding the former president’s home” but we know nothing about the nature of that obstacle or what it took to overcome the obstacle.

Finally, from the article, “Whether a decision about Trump’s culpability for Jan. 6 could have come any earlier is unclear.” In other words, we don’t really know if things would have happened faster had they gone straight for Trump.

Bradley P. Moss said this:

People criticizing Garland “are not the ones In the spotlight If they had jumped the proverbial gun.  None of you were going to be putting your jobs, your name, your law license, and the Integrity of the DOJ or bureau on the line . . . I do not want a repeat of past mistakes. If they bring the conspiracy to defraud charges (or whatever else) against Trump and his allies, I want it ironclad. No mistakes. No loopholes.”

Big-name commentators leap forward, waving their copy of TheWashington Post, saying “SEE I WAS RIGHT! Merrick Garland is doing it WRONG.”

I do wonder: If there is disagreement within the DOJ: Garland on one side, and others against him, why do people assume Garland is wrong? Maybe the people running to the press in violation of DOJ policies should be a little more suspect.

I also wonder why these disgruntled insiders chose this moment to go to the press.

I won’t quote all the TV lawyers who evidently didn’t read past the sensational headlines, but here is an example of the kind of responses people had to the piece:

Here Is how the author summarized the The Washington Post piece:

“In those days of 2021 and early 2022, before dual Special Counsel investigations and grand juries, there was widespread worry that bad-faith claims of DOJ bias by the Trumpist GOP had cowed AG Merrick Garland into inaction. Now we know that’s exactly what happened!”

Nothing in the article says that the GOP “cowed” Merrick Garland into “inaction.” The article tells us that people in meetings (including Monaco and Garland after they were appointed) agreed that bottoms-up was the best approach and the investigation would not start with the fake electors.

The article also tells us that people in the FBI “resisted” opening an investigation into Trump. But to leap from there to “inaction” is  just that: a leap.

The above headline is misinformation, not disinformation. Disinformation is deliberate falsification. Misinformation is incorrect, but the intention isn’t to deceive. The people passing along the misinformation simply have it wrong.

What actually happened was like game of telephone:

  • The article was confusingly written with sensational headlines.
  • TV lawyers didn’t read past the headlines or had knee-jerk reactions.
  • Others listened to the TV lawyers and got the wrong idea.

* * *

My first inclination was to say to the thousands of people melting down on social media (and the many people sending me questions and emails): “Enjoy. You can have unnecessary meltdowns and rages if it makes you feel better.”

But it seems to me that democracy needs more 🥸 and less 🔥💣.

Moreover, constant outrage isn’t good for anyone’s health. How will we all have the energy to do the work necessary to save democracy if people keep unnecessarily setting their hair on fire?

* * *

2. June updates in the January 6 probe 

(Remember that the DOJ is using a “bottom up” approach to the investigations.)

June 7, 2023: We learned that Steve Bannon was subpoenaed by the DOJ in connection to the investigation into the January 6 insurrection.

June 13, 2023: Nevada ‘fake electors’ (Nevada’s GOP Chair Michael McDonald, a close Trump political ally, as well as Jim DeGraffenreid, the state party’s vice chair) appeared before the D.C. grand jury investigating Jan. 6. (They were spotted by NBC News entering the area where the Jan. 6 jury is meeting at the Washington federal courthouse.)

June 22, 2023: Trump campaign’s Election Day operations official G. Michael Brown appeared before the Jan. 6 grand jury.

June 23, 2023: We learned that the DOJ has compelled at least two Republican fake electors to testify to a federal grand jury in Washington in recent weeks by giving them limited immunity.

(Witnesses can refuse to talk by taking the Fifth. One way to compel their testimony is for prosecutors to give limited immunity, which means if the person testifes truthfully, he or she will not be prosecuted for their role in this crime. This generally means the prosecutors have their sights set on someone higher on the ladder who is harder to get to.)

June 23, 2023: Next, we learned that Michael Roman, a top official in former President Donald J. Trump’s 2020 campaign, is in discussions with the DOJ to cooperate. From The New York Times:

Michael Roman, a top official in former President Donald J. Trump’s 2020 campaign, is in discussions with the office of the special counsel Jack Smith that could soon lead to Mr. Roman voluntarily answering questions about a plan to create slates of pro-Trump electors in key swing states that were won by Joseph R. Biden Jr., according to a person familiar with the matter.

If Mr. Roman ends up giving the interview — known as a proffer — to prosecutors working for Mr. Smith, it would be the first known instance of cooperation by someone with direct knowledge of the so-called fake elector plan. That plan has long been at the center of Mr. Smith’s investigation into Mr. Trump’s wide-ranging efforts to overturn the 2020 election.

Here is a good definition of a proffer:

In some federal criminal cases, a potential defendant may have information that may be valuable to prosecutors. In cases where the evidence against the potential defendant is airtight, such as where the client is on videotape committing the alleged crime, it may be in the client’s best interest to cooperate with prosecutors and provide them with all relevant information.

Cooperation can also make sense when a potential defendant faces significant prison time, the risks of a trial are significant, and there is a good chance they could receive significant benefits in exchange for their cooperation. The benefits could range from no criminal charges or a lesser charge. Or, prosecutors could agree to request less prison time at sentencing.

A proffer interview is the most common way to cooperate with the government in a criminal case. If the client has helpful information to offer, defense counsel will offer the client’s cooperation and negotiate a proffer agreement.

Basically the defendant tells the prosecution everything they know and the federal rules of evidence protects defendants from prosecutors using their proffer statements against them in future proceedings, except for untrue statements, which void the agreement. 

So, the difference between the DOJ compelling someone to testify by immunizing them and a cooperation agreement like the one Roman is hoping for is this: If you’re in talks to cooperate, it means you are in big trouble and you want to be in less trouble. On the other hand, if you are immunized it means you are a small fish and they want the bigger fish.

Therefore, Roman’s position is precarious. He doesn’t know if he will even get the proffer meeting. If he does, he’d better take care to tell the truth and provide something valuable to the prosecutors.

Note: It can be hard to distinguish a person who witnessed a crime from someone who aided and abetted the crime or was part of the conspiracy. Prosecutors need to collect a lot of evidence before they can distinguish witnesses and small fries from those with significant criminal liability.  (Any defense lawyer can tell you that prosecutors sometimes get it wrong.)

3. This week’s updates on U.S. v. Trump & Nauta (the classified documents case).

If you’re just tuning in, I wrote about this indictment in three parts:

The DOJ’s response to the standing discovery order is here.

(Like all the documents filed in these cases, the DOJ is writing these documents so they can be easily read and understood by the public. Don’t be afraid to click and start reading. You may find that reading legal documents is totally fun🤓)

Here is everything you need to know about criminal discovery in a nutshell: The defendant gets almost everything the government has, including anything exculpatory (anything that can help the defendant.)

In this first production, Trump will get the grand jury transcripts of any witnesses who will be testifying against him:

“The first part includes, inter alia, documents obtained via subpoena; evidence obtained via search warrants; transcripts of grand jury testimony taken before a grand jury in the District of Columbia and transcripts of grand jury testimony taken before a grand jury in the Southern District of Florida; and memorialization of witness interviews conducted through May 12, 2023.”

Seeing the transcripts from witnesses who testified against him is likely to explode Trump’s head. This stage can be intense (and for normal defendants, painful and frightening.) Things get real.

In this filing, the DOJ basically says: “We are going to give you everything we are supposed to give you and more”:

“It is the government’s intent to disclose promptly all witness statements and associated memorialization of those statements, even if they would not be deemed discoverable under 18 U.S.C. § 3500.”

Among the things Trump will also get to see is Nauta’s testimony to the grand jury on June 21.

In what is surely the strangest thing I have ever seen, Trump continued his spree of confessing his crimes in front of large audiences, this time in an interview with Bret Breir where he admitted that he refused to comply with a subpoena. He gave some silly reasons (he wanted to go through the boxes to check for personal belongings, but he was too busy) but none of these reasons are legal defenses. They are excuses and admissions that can be used against him in court.

Here is the Republican Accountability Project’s ad “Trump is too busy to follow the law”

And now, for another crime. Someone ate my lunch when I wasn’t looking.

I took this picture immediately after the crime was committed because there was only one suspect in the house. Although there were no eyewitnesses, and JJ is too wise to confess, the circumstantial evidence was overwhelming: I briefly turned away. Crumbs were on the table where there had previously been no crumbs. A chair was pulled out, giving JJ a clear path to the table.

The verdict?

Adding: I have been reading the comments and we clearly have a two-tiered system of justice in this country: One for cute dogs and one for everyone else.

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