After a wave of subpoenas, notes of caution about the Jan. 6 investigation
By Katie Benner and Adam Goldman
From outside the walls of the Justice Department, the sprawling investigation into efforts to reverse the outcome of the 2020 election seems only to be accelerating, with prosecutors last week subpoenaing about 40 associates of former President Donald Trump and seizing phones from at least two of his aides.
But that flurry of activity should not be mistaken for a signal that Trump will imminently be prosecuted for his attempts to remain in office or the impact that those actions had on the Jan. 6, 2021, attack on the Capitol, according to two people familiar with the investigation. They noted that prosecutors are still going through evidence and are far from determining whether any charges could be brought against the former president.
The notes of caution appear to reflect the complexity of the investigation, the methodical pace at which the Justice Department conducts its work and the politically explosive nature of an inquiry involving a former president and likely presidential candidate.
They also stand in contrast to signals emanating from the narrower investigation into Trump’s handling of government records and sensitive intelligence information, including possible obstruction charges.
In a search warrant application and in court filings in the documents case, a team of prosecutors in the Justice Department’s National Security Division has laid out evidence that Trump not only left the White House with thousands of pages of sensitive materials, but that he tried to prevent the government from retrieving them from Mar-a-Lago, his Florida home and private club.
The evidence laid out by the department in the documents matter has been sufficiently extensive that even some prominent figures from Republican administrations like Bill Barr, who served as attorney general under Trump, and John Yoo, a top Justice Department official under President George W. Bush, have publicly said that Trump likely obstructed justice.
The documents case is now caught up in a legal fight between Trump and the Justice Department over whether and how an independent arbiter, known as a special master, will review documents seized by FBI agents during the court-authorized search of Mar-a-Lago on Aug. 8.
Despite that legal hurdle, and the weeks of investigative work still to be done, the department could consider potential charges against Trump much sooner in the documents case than in the Jan. 6 investigation, the people familiar with the inquiries said.
Even if the recent spate of subpoenas yields compelling information that advances the Jan. 6 investigation, it is unlikely that Attorney General Merrick Garland would be in a position to weigh criminal charges against Trump in either the Jan. 6-related inquiry or in the documents investigation before the midterm elections. With one case tied up in the courts and investigators still gathering and evaluating large amounts of information in the other, such a decision might not even happen this year.
The Justice Department declined to comment.
In the documents case, prosecutors have articulated in their court filings a clear theory of which laws the former president may have broken.
The government has raised the possibility that Trump violated the Espionage Act by bringing sensitive national security information to his private club after he left the White House. It said he may have violated a law that prohibits the mishandling of sensitive national security records, some of which were discovered in an unsecured storage room. And it asserted that he may have obstructed the federal investigation, with one of his own lawyers having certified in June that all the documents the government was seeking had been returned when they had not been.
The documents investigation seemed to be moving apace in early August, when the Justice Department seized thousands of pages of presidential records from Trump’s home, including additional batches of materials that were marked as highly classified. A redacted version of the government’s affidavit said it had probable cause to believe that it would find “evidence of obstruction” at Mar-a-Lago.
But Judge Aileen M. Cannon, a federal judge in Florida, put the investigation into a holding pattern this month when she granted Trump’s request for a special master to review the recently seized materials. The court must now settle key issues, including who will serve as the special master and whether the FBI and other intelligence agencies can review 103 key documents for potential harm to national security while that arbiter completes his or her work.
While the Justice Department indicated its openness to one of Trump’s picks to serve as the special master, it appears ready to proceed with an appeal of Cannon’s ruling, a step that could lead to continued delays and potentially slow the investigation even more.
Even without the special master dispute, the department has further investigative steps to complete in the documents case. It may need to determine whether Trump still has government records, which the National Archives told Congress this week is a possibility.
The department has said it wishes to interview more witnesses. And it will need to decide how to handle Trump lawyers who may have misled or lied to prosecutors. The intelligence community has yet to complete its review of the national security risks of Trump keeping highly classified documents in a setting without proper security. And it is not clear why Trump kept the documents.
If prosecutors eventually decide to recommend prosecuting Trump in the documents case, Garland would then need to decide whether to follow that recommendation.
But if the documents case appears on track to reach a decision point about prosecution, the Jan. 6 inquiry does not yet have that end point in sight.