The Washington Post “Bombshell” about Merrick Garland

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:

•  “charted a cautious course aimed at restoring public trust in the department”
• “shying away”
• “slow-paced”
• efforts to go after Trump himself were “chilled.”
• lower level prosecutors felt “chafed“

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?

* * *

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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