By Michael S. Schmidt
In the last week, local prosecutors in Atlanta barreled ahead with their criminal investigation into the effort by former President Donald Trump and his allies to overturn the 2020 election results in Georgia, targeting fake electors, issuing a subpoena to a member of Congress and winning a court battle forcing Rudy Giuliani to testify to a grand jury.
In Washington, the House select committee investigating the Jan. 6, 2021, Capitol attack unfurled its latest batch of damning disclosures about Trump at a prime-time hearing, and directly suggested that Trump needs to be prosecuted before he destroys the country’s democracy.
But at the Justice Department, where the gears of justice always seem to move the slowest, Attorney General Merrick Garland was forced to rely on generalities about the American legal system, saying “no person is above the law in this country” as he fended off increasing questions about why there has been so little public action to hold Trump and his allies accountable.
“There is a lot of speculation about what the Justice Department is doing, what’s it not doing, what our theories are and what our theories aren’t, and there will continue to be that speculation,” Garland said at a briefing with reporters Wednesday as he appeared to grow slightly irritated. “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 do our investigations in public.”
The contrast between the public urgency and aggressiveness of the investigations being carried out by the Georgia prosecutors and the congressional committee on the one hand and the quiet, and apparently plodding and methodical approach being taken by the Justice Department on the other is so striking that it has become an issue for Garland — and is only growing more pronounced by the week.
The House committee has interviewed more than 1,000 witnesses, with more still coming in, and has selectively picked evidence from what it has learned to set out a seamless narrative implicating Trump. The Georgia prosecutor, Fani T. Willis, appears to be assembling a wide-ranging case that some experts say could lead to conspiracy or racketeering charges.
Exactly what is going on inside the Justice Department remains largely obscured, beyond what it prioritized in the months after the attack: its prosecution of hundreds of the rioters who stormed the Capitol and its sedition cases against the extremist groups who were present.
But through subpoenas and search warrants, the department has made clear that it is pursuing at least two related lines of inquiry that could lead to Trump.
One centers on the so-called fake electors. In that line of inquiry, prosecutors have issued subpoenas to some people who had signed up to be on the list of those purporting to be electors that pro-Trump forces wanted to use to help block certification of the Electoral College results by Congress on Jan. 6, 2021.
Investigation of the fake electors scheme has fallen under Thomas Windom, a prosecutor brought in by the Justice Department last year to help bolster its efforts. Windom’s team has also issued subpoenas to a wide range of characters connected to the Jan. 6 attacks, seeking information about lawyers who worked closely with Trump, including Giuliani and John Eastman, the little-known conservative lawyer who tried to help Trump find a way to block congressional certification of the election results.
Earlier rounds of subpoenas from Windom sought information about members of the executive and legislative branches who had been involved in the “planning or execution of any rally or any attempt to obstruct, influence, impede or delay” the certification of the 2020 election.
The other line of Justice Department inquiry centers on the effort by a Trump-era Justice Department official, Jeffrey Clark, to pressure Georgia officials not to certify the state’s election results by sending a letter falsely suggesting that the department had found evidence of election fraud there.
Clark’s home was searched last month by federal investigators, who seized his electronic devices. As part of the same line of inquiry, federal agents also seized the phone of Eastman.
But the Justice Department has often seemed to be well behind the House committee in unearthing key evidence, most notably when Cassidy Hutchinson, a former West Wing aide under Trump, provided her inside account of Jan. 6 before she had been interviewed by federal prosecutors.
And the committee has not been shy about weaponizing its proceedings to dial up the pressure on Garland to move more aggressively, even setting out the evidence of crimes in a civil court filing related to its investigation. Its vice chair, Rep. Liz Cheney, R-Wyo., said Sunday on CNN that the committee is still considering whether to make a criminal referral to the department, a symbolic move that would only increase the pressure on the attorney general.
Garland has repeatedly emphasized that one of his primary goals is to reinforce the department’s commitment, after the Trump years, to professionalism and impartiality — a formulation that in the eyes of some of his critics leaves him an escape hatch from pursuing a politically explosive investigation at a time when Trump is considered a likely candidate in 2024. The questions about how urgently Garland is pursuing the investigation has frustrated Democrats and former Justice Department officials — and even President Joe Biden.
“Experienced prosecutors, like Merrick Garland, are very familiar with the dynamic of outside scrutiny in high-profile cases from victims, the media and politicians,” said Samuel Buell, a law professor at Duke University and a former member of the Justice Department’s special task force that investigated the energy company Enron.
“But what’s different here is that you have a group of people — in this case the committee — which has the power of subpoena and they have picked out the best facts to tell a clean, one-sided, accessible story,” he said.
A criminal prosecution against Trump would present a series of challenges for the Justice Department. Andrew Goldstein, one of the lead prosecutors who examined the question of whether Trump tried to obstruct the Russia investigation, said that based on the hearings the criminal charge there is the most grist to investigate Trump for is obstructing a congressional proceeding.
But bringing a case based on that charge would present a series of obstacles, because prosecutors would need to show that Trump took a specific action intended to obstruct the certification of the election and that he had intent, meaning he knew that what he was doing was wrong. Goldstein, in an interview with the New York Times podcast “The Daily,” said the hearings have revealed strong evidence regarding Trump’s intent, but finding an action he undertook to that end would be more difficult.
For example, he said, Trump’s statements to his supporters on the Ellipse — before he called on them to march to the Capitol — would likely be considered protected by his First Amendment rights.
“Without question, what happened on Jan. 6 was horrendous for our country and for our democracy,” Goldstein said. “You certainly wouldn’t want to look away if there’s criminal wrongdoing there. But you also want to make sure that the cases that you bring are strong and are the right cases to bring.”
Goldstein said that even if prosecutors are able to establish that Trump broke the law and that bringing a case could survive an appeal, Garland would ultimately have to decide whether it was in the best interest of the country to bring such a prosecution — a question complicated by Trump’s apparent plans to run for president again.
“The considerations when you’re talking about a political leader are certainly different and harder,” Goldstein said, “because there you have the very clear and important rule that the Department of Justice should try in every way possible not to interfere with elections, to not take steps using the criminal process that could end up affecting the political process.”
Indeed, the Justice Department is bound by a series of laws, guidelines and norms that do not apply to the congressional or Georgia investigators. In addition to still being stung by criticism of its handling of the Russia case against Trump and the earlier inquiry into Hillary Rodham Clinton’s administration of her emails, department officials cannot legally speak about the work of grand juries and are strongly discouraged from talking, even in broad terms, about an ongoing investigation.
None of those rules apply to the congressional committee. And, unlike in a courtroom, the committee is not required to allow Trump to defend himself and can release whatever evidence it wants, including hearsay.
Congressional investigations have a history of, at times, complicating, and in one high-profile instance dooming, a Justice Department investigation.
During the House investigation into the Iran-Contra scandal during the Reagan administration, it granted immunity to Lt. Col. Oliver North to persuade him to testify in a nationally televised public hearing.
But years later, after the Justice Department convicted North on three felony counts, a federal appeals court threw out the charges, saying that the testimony North had given in exchange for immunity had undermined the case.
So far, there’s no public evidence that Congress has granted immunity to any of the hundreds of witnesses it has interviewed.
But legal experts said that there are other ways the committee’s actions could complicate a prosecution. When prosecutors call a witness at trial, they want there to be few, if any, examples of the witness contradicting themselves or equivocating, as those statements have to be turned over to defense lawyers and can be used by the defense to undermine the witness’s credibility.
The committee has conducted thousands of hours of recorded depositions with Trump aides and administration officials who would likely be witnesses in a Justice Department prosecution. There are almost certainly examples on the recordings of witnesses making statements that complicate their assertions, Buell said.
“Prosecutors want their witnesses testifying at trial for the first time,” Buell said. “This is a problem, but not a fatal problem in the way that immunity is,” he said, adding that when the Justice Department considers whether to bring a high-profile prosecution, potential problems receive immense internal scrutiny as prosecutors want to avoid any issue that could upend a case and undermine the department’s credibility.
At the Justice Department on Wednesday, a reporter pressed Garland about what he was doing to hold Trump accountable. Garland, who is known for the staid demeanor he exhibited in his seven years as a federal appeals court judge, became animated.
Garland said the investigation into the effort to overturn the 2020 election was the most important one in the department’s history because it upended a central tenet of the country’s democracy. He said the department needs “to hold accountable every person who is criminally responsible for trying to overturn a legitimate election and must do it in a way filled with integrity and professionalism.”
“Look, no person is above the law in this country,” Garland said.
A reporter interrupted Garland, saying: Even a former president?
Garland appeared to grow agitated.
“Maybe I’ll say that again, no person is above the law in this country — I can’t say it more clearly than that,” Garland said, adding that there is nothing preventing the department from investigating anyone who was involved in an attempt to overturn an election.