Published by The Lawfare Institute
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On Tuesday evening, July 26, the Washington Post broke the news that the Justice Department is investigating the actions of President Donald Trump in connection with its criminal probe into the Jan. 6 insurrection.
According to the Post, “in recent days” prosecutors have asked witnesses appearing before a grand jury “hours of detailed questions” about Trump’s behavior in the run-up to Jan. 6, including his efforts to pressure Vice President Mike Pence into upending the certification of the electoral vote and the campaign by Trump’s associates to create slates of “fake” electors.
The Post also reported that the Justice Department “received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows”—and, notably, that it obtained those records as early as April, well before the recent flurry of activity around the Jan. 6 committee’s hearings in Congress.
This story is significant because it confirms for the first time that the Justice Department is interested in the conduct of Trump himself—not just the rioters present at the Capitol that day and not just the broader circle of individuals around the former president. According to the Post, “investigators … want to understand, at a minimum, what Trump told his lawyers and senior officials to do.”
In an NBC interview aired the same evening that the Post broke its story, Attorney General Merrick Garland commented that, “The Justice Department has from the beginning been moving urgently … to bring to justice everybody who was criminally responsible for interfering with the peaceful transfer of power.”
The Post’s reporting, which has been confirmed by the New York Times and other news outlets, casts new light on the ongoing debate over whether the Justice Department’s criminal investigation into the insurrection is moving too slowly. Some critics, most notably former Mueller investigation prosecutor Andrew Weissmann, have worried that the department has taken the wrong approach by beginning with individual criminal acts committed by rioters and working upwards, rather than by focusing on the broader network of a potential conspiracy fanning out from Trump. Conversely, others, such as former U.S. attorney Harry Litman, counter that Attorney General Merrick Garland “deserves the presumption that, as promised, he is going after insurrectionists ‘at all levels.’” Or as Barb McQuade, also a former U.S. attorney, put it: “Chill, folks.”
The four of us have taken different positions in this discussion. Wittes has argued that the Justice Department’s probe has been “a remarkably quick and aggressive investigation” that “will only heat up more as the months grind on.” Strzok, for his part, recently tweeted that “it’s time for Congress to start asking questions” about the department’s apparent tardiness when it comes to uncovering certain evidence already obtained by the committee. Jurecic and Orpett have written that, in the absence of visible public movement by the Justice Department, it’s reasonable for the public to ask questions about the pace and focus of the department’s work—and it’s the responsibility of investigators to “acknowledge that the challenge it faces is much more than a complex investigation involving hundreds of defendants and complicated facts. It is about how the Justice Department should restore the rule of law in the aftermath of an insurrection.”
Last night’s news doesn’t definitively answer the question of whether or not the Justice Department has been moving quickly enough. In the short term, at least, this debate is probably irresolvable. There’s no real way to determine whether the investigation was active enough, designed optimally, or resourced ideally at the outset. To quote Garland himself, “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.” And the data can support almost any hypothesis.
Perhaps, for example, the department has been aggressively investigating all along, and its activity only recently became visible because of questioning before the grand jury. Or perhaps investigators received phone records in April but really picked up the pace in recent weeks thanks to new evidence provided by the Jan. 6 committee during its hearings. Reporting from ABC that the Justice Department only recently reached out to the committee’s star witness Cassidy Hutchinson—after her blockbuster testimony before Congress—might bolster this theory.
Similarly, imagine that over the next few weeks, Trump and his senior aides all face indictment for a broad range of post-election activity—a course that would seem to validate the notion that the investigation had been aggressive all along. There would still be no way to know whether the sudden action in fact reflected a well-designed investigation from the beginning or whether it merely reflected a fire lit under the Justice Department and FBI by the combination of the Jan. 6 Committee investigation and relentless criticism of their performance.
Conversely, imagine that over the next two years, the investigation stagnates and produces continued indictments of people involved in the riot but does not come to meaningfully touch the political echelon at all. This eventuality still wouldn’t validate the skeptics’ anxieties. After all, it would still be possible that the investigation had been aggressive and active from the beginning but that the evidence, for one reason or another, simply didn’t support action against all the former president’s men.
While we cannot know who has been right to date, we can, however, lay out a few prospective benchmarks for an evaluation of the investigation’s future progress—particularly in light of the Post’s reporting. What would the investigation look like if it was proceeding over the next few months in an aggressive fashion? What would we expect it to look like if it were sleepy or over-cautious? What are the steps people hoping for appropriate criminal accountability should wish to see? What are the signs that should worry people if they materialize—or fail to materialize—over the coming months?
Here are eight standards against which you can usefully measure how much confidence you should have in the Justice Department’s investigation over the next several months.
First, is there additional movement on the John Eastman and Jeffrey Clark cases? These are the two cases involving the political cadre close to Trump that appear to be the furthest along, at least in connection with conduct during the post-election period. Both men have had search warrants executed against them—meaning that the Justice Department has already argued to a court that it has probable cause of criminal activity.
The investigation will look quite different a few months from now if Eastman and Clark have been indicted and Trump’s conduct is described in the indictment than if the cases have not moved forward. Only this week, we learned that senior aides to former Vice President Mike Pence recently testified before a federal grand jury in connection with Eastman’s effort to persuade the vice president to unilaterally reject election returns from key states. Now, per the Post’s July 26 story, it seems that those aides were questioned specifically about Trump’s actions as well.
These investigations into Clark and Eastman are pivotal because, unlike the investigations of the rioters, they directly involve Trump’s individual conduct. Eastman, after all, was Trump’s lawyer and the conduct at issue is conduct in the course of his purported representation of the client—and directly sanctioned by him. And Clark was an official whom the then-president was actively intending to install as acting attorney general precisely so that Clark could send a letter to Georgia officials—a letter that both men knew or should have known to be false in its essential claims concerning election irregularities.
Progress in these investigations, in other words, is highly probative of an investigation closing in on Trump himself. Significantly, the Post identifies the Justice Department’s probe into Trump’s pressure on the Justice Department into falsely declaring election irregularities in Georgia—as well as the pressure campaign on the vice president—as a “track” of the overall investigation “that could ultimately lead to additional scrutiny of Trump.”
There is one more reason to follow the progress of the Eastman and Clark cases with particular care. Garland has said that the Justice Department will methodically build a foundation and work its way up from there. If we take seriously this metaphor of working his way up the pyramid, we should not expect any action against Trump himself to precede action in these cases. Rather, we should see Clark and Eastman as canaries in the coal mine of the coterie immediately around the former president. Trump himself is most unlikely to face indictment before they do. Their prosecution is likely a precondition for his.
Second, what do we know about the role of the Justice Department Office of Inspector General in conducting the investigations of Clark and Eastman? And how coordinated is that inspector general probe with the Justice Department’s other investigatory work on Jan. 6? One of the persistent puzzles when it comes to the Justice Department’s work has been the fact that Clark and Eastman are reportedly under investigation by the Justice Department’s Office of Inspector General, a component that normally conducts internal probes of potential misconduct within the department. In contrast, the Post reports that other components of the Jan. 6 investigation are being run primarily by the U.S. Attorney’s Office for the District of Columbia, as well as the Criminal Division and the National Security Division at Justice Department headquarters.
The question of why the inspector general’s office remains so deeply involved in the Eastman and Clark matters is important for two reasons: first, because it raises questions about whether the investigation is adequately resourced—the inspector general being a rather puny office compared to the FBI—and second because it raises the question of whether the different elements of the probe are being examined as isolated threads or as a whole tapestry.
The inspector general’s involvement here is, at a minimum, extremely unusual. Eastman’s phone was initially seized, and Clark’s house searched, by federal agents acting on behalf of the office. As former Justice Department inspector general Michael Bromwich explained to the New York Times, the office’s involvement makes sense to the extent that the inspector general has “authority to look into any public corruption crimes committed by Justice Department personnel,” in the Times’s words—which would describe Clark. Presumably, then, there is some kind of link between Clark and Eastman, who was not an employee of the department.
Inspector General Michael Horowitz is certainly capable of conducting an aggressive investigation, as anyone who’s paid attention to his recent flayings of the department’s handling of the investigations into the Clinton email scandal and Russian election interference can attest. But indications that the Clark and Eastman portion of the department’s work is being run through the inspector general’s office still offer grounds for concerns. It suggests that the various investigations the public knows about may not be adequately coordinated. If the department were indeed conceptualizing its probe as one of a multi-pronged conspiracy—a “hub-and-spoke” investigation, as Weissmann calls it—it raises the question of whether anyone has their eye on the whole wheel or whether different spokes are being examined by different investigations out of different components.
The inspector general’s centrality is also odd because the inspector general has dramatically fewer resources with which to conduct such an investigation than does the FBI: the office has a staff of roughly 500, compared to the over 35,000 employees of the bureau. The difference here is not only quantitative but also qualitative. The FBI has a stronger investigative cadre on average. Is the inspector general’s office really the best-equipped component of the Department of Justice to conduct this probe?
If we learn of close coordination between the inspector general’s office and other components of the Justice Department on this investigation, that would be a signal that the department is thinking about the Jan. 6 probe holistically.
We’ve seen a few indications of this. On July 27, a court filing by the Justice Department indicated that the U.S. Attorney’s Office for D.C. has obtained a warrant to search Eastman’s phone, in addition to the inspector general’s warrant. The wording of the new warrant—that the cell phone was “obtained by an agent not associated with the investigative team”—also raises the intriguing possibility that inspector general agents are being used in some kind of filter capacity to deal with potentially privileged information in the material seized from Eastman and Clark.
Both subjects of the investigation are attorneys, and Justice Department practice would dictate a review and removal of privileged material prior to the seized material being viewed by members of the investigative team. If that’s what’s happening here, it could be that the use of inspector general agents by the department for this purpose is strategic, which would be greatly reassuring.
Similarly, the Post writes that the Eastman and Clark searches were conducted “as part of” the same effort that involved a broad slate of subpoenas issued by the grand jury overseen by the U.S. attorney’s office in D.C. Still it’s unclear whether this may be reading too much into the Post’s wording, or if it suggests a reassuring degree of coordination and strategy.
If we see indications that the Clark and Eastman probe is continuing along a more or less separate track, a possibility the new warrant does much to diminish, this might suggest that investigators have carved up their work into more isolated units—a concerning sign for those who want to see the department look at Jan. 6 in an integrated fashion.
Third, is there evidence the Justice Department is investigating committee claims of witness tampering? The Jan. 6 Committee has complained on two occasions of efforts to influence its witnesses. Specifically, Vice Chair Liz Cheney noted that someone—later reported to be an intermediary of Mark Meadows—had told Cassidy Hutchinson before her March 7 deposition that “[Mark] wants me to let you know that he’s thinking about you. He knows you’re loyal, and you’re going to do the right thing when you go in for your deposition.” At the end of the committee’s July 12 hearing, Cheney alleged that Trump himself had tried to contact a witness—who did not take the call— and announced that the committee had referred this incident to the Department of Justice.
Evidence of follow-up here from the FBI or the department would be a valuable indicator of interest in a pattern of obstructive conduct with respect to witnesses that dates back at least to the Mueller investigation. This pattern is evident to the naked eye given the detailed accounts in the Mueller report of obstructive conduct and the frequent efforts since then to influence witnesses in any number of proceedings. Yet it has attracted strangely little overt departmental attention. Signs of interest here would be signs that the department perceives the serial abuse of the justice system by the former president as a matter requiring, at some point, a response.
Fourth, is the bottom of the investigative pyramid meaningfully connected to the apex? One of the concerns that animates the anxiety about the department’s investigation is that its approach may not ever reach what is apparent criminality in the political echelon. Garland has described a process in which investigating “overt” actors and crimes “generates linkages to less overt ones”: “flipping” the lower-level actors, as the process of convincing a witness to cooperate is known, leads to the higher-level actors. In this vision, prosecutions of the violent criminality of the rioters on the ground on Jan. 6 would lead higher and higher up the chain.
But what if Garland’s theory is wrong? What if Trump was running a criminal conspiracy to overturn the election results but that criminal conspiracy was sufficiently unconnected to the violent insurrection of Jan. 6 that no amount of rioters flipping would shed meaningful light on it?
The evidence emerging from the House Select Committee’s hearings now suggests that Trump incited the insurrection in order to further both the false-elector conspiracy masterminded by Eastman and the closely-related conspiracy to pressure Vice President Pence to refuse to count swing-state elector slates. Trump triggered the riot to both buy time for state legislatures to “decertify” their elections and to intimidate Republican members of Congress and Vice President Pence not to count swing state electoral slates.
That Trump consciously incited the insurrection is now supported by a range of evidence newly unearthed by the select committee: first, that Trump knew the crowd was heavily armed but urged them to march on the Capitol anyway; second, that Trump made multiple last minute, inflammatory changes to his Ellipse speech that took explicit aim at Pence and that ignored and defied the advice of White House counsel and other advisers; third, that Trump made repeated attempts to accompany the crowd to the Capitol, again in defiance of the advice of White House counsel and other advisers, and was infuriated that his Secret Service detail refused his command; and fourth, that the decision to have the crowd march to the Capitol had been planned for days had been intentionally kept secret, and that many of Trump’s advisers, including Meadows, anticipated that the result could well be violent.
In this context, a question that had once seemed urgent—whether the White House was in direct communication with either the Oath Keepers or the Proud Boys before the insurrection–has actually become less so in terms of building an incitement or conspiracy case against Trump with respect to the riot itself.
Similarly, Cassidy Hutchinson told the Jan. 6 Committee that the day before the Capitol attack, Trump directed Chief of Staff Mark Meadows to reach out to Roger Stone and Michael Flynn. This is exactly the sort of connective tissue that could link the bottom of the pyramid to the top.
The point is that if the Justice Department is to connect the bottom of the pyramid to its top, one still needs some sign that it is investigating either the White House’s connections to the alleged seditious conspiracies involving the Oath Keepers or Proud Boys or that it is investigating the pattern of Trump’s activities the committee has revealed as a possible conspiracy or incitement of its own. The Post story offers some indication that the department is pursuing this, identifying the portion of the department’s investigation centering on “seditious conspiracy and conspiracy to obstruct a government proceeding”—charges filed against Jan. 6 rioters—as the second “track” that could direct investigators’ attention toward Trump personally.
But the reporting on this point is not specific. So far, nearly all the indictments have taken place at the base and mid-section of the pyramid. Evidence that these parts of the pyramid have a meaningful connection to the political echelon would go a long way to reassuring people that criminality at the top will not go unexamined because it doesn’t link to criminality at the bottom.
Fifth, is all the conduct at issue related to Jan. 6 receiving adequate attention? Even if the different components of the pyramid appear disconnected, it would be reassuring to learn that the department is taking a careful look at the wide range of potential criminality. If one thinks of this as a bottom-up investigation, one wants to see evidence that criminal misconduct isn’t escaping investigative scrutiny because it’s unrelated to the conduct of rioters. Alternatively, if one considers this as a hub-and-spoke investigation, one would want to see indications that all the potential spokes are being looked at—that someone is seeing the whole wheel.
The Post’s new reporting provides a bunch of useful details here and some reason for confidence. As noted, we now know that there are investigations into the fake electors scheme as well as into Clark and Eastman’s activities in other arenas. And it now seems as well that the department is investigating Trump’s efforts to pressure Pence into upending the certification of the electoral vote. As noted above, the Post story also suggests that the seditious conspiracy investigations may be in play here too.
Less clear, however, is whether there is any serious investigation into potential criminal incitement by Trump during his Ellipse speech on Jan. 6. In his opinion finding it “more likely than not” that Trump and Eastman had committed crimes in relation to the insurrection, Judge David Carter also pointed to potential criminal conduct by Trump under 18 USC § 1512(c)(2) (obstruction of an official proceeding) as well as 18 USC § 371 (conspiracy to defraud the United States). To what extent is the investigation thinking about these potential violations? And what about that pressure campaign on state legislators? This is far from a definitive list of all the statutes and conduct that could be implicated.
Less discussed but no less important, is the Justice Department considering whether the then-president engaged in a course of conduct intended to result in the death or injury of the vice president? This is not a rhetorical question. It’s a legitimate investigative matter predicated by the evidence already public.
Each of these areas involves complicated questions, evidentiary and legal. For example, to the extent the investigation focuses on the former president’s activities while he was in office, the department may be constraining its investigative strategy based on its legal analysis of the so-called clear statement rule, which holds that some criminal statutes do not apply to the president. So we are not certainly suggesting that investigative activity must result in specific charges. But the more evidence emerges that the department has considered or is considering each of the fact patterns specifically, the more confidence people will have that it is leaving no stone unturned.
Sixth, what the heck happened to all those other investigations involving people who might have evidence to give on Jan. 6 matters? News outlets have reported on a number of Justice Department investigations concerning figures with links to the Jan. 6 investigation, even if the investigations themselves are somewhat or entirely separate from Jan. Where do those probes stand?
In the spring of 2021, the FBI executed search warrants on Trump’s one-time lawyer Rudy Giuliani—a central figure in many of the efforts to overturn the election—reportedly in relation to an investigation into Giuliani’s efforts to find negative information from Ukrainians about the Bidens in the runup to the 2020 election. (Those efforts snowballed into the scandal that ultimately precipitated Trump’s first impeachment.)
Later that year, the U.S. Attorney’s Office for the District of Columbia issued a subpoena for financial records from fundraising organizations run by Sidney Powell—another one of Trump’s lawyers also centrally involved in efforts to keep the former president in power.
More tangentially, Florida Republican Rep. Matt Gaetz—who supported efforts to upend the electoral vote certification on Jan. 6—was reportedly under investigation as of May 2021 for possible violations of federal sex trafficking laws.
These investigations are not on point with respect to Jan. 6, but they matter anyway—for three distinct reasons. The first is that the Justice Department will often use potential criminal exposure on unrelated issues as a way to pressure potential witnesses into cooperation on a separate probe—a tactic used during the Mueller investigation. But if the Giuliani, Powell, and Gaetz investigations have all vanished without a trace, that potential source of leverage is gone.
The second reason involves evidence that may have been seized in these cases that may relate to Jan. 6. Consider Giuliani’s phones and computers, which were seized on probable cause related to digging dirt on the Bidens from Ukrainian sources. These devices, however, were seized in April 2021, shortly after that insurrection—about which they likely have significant evidence. Investigators could theoretically seek new warrants to look at this material if the original investigations are not allowed to just die.
The third reason involves ambient public sentiment. The Trump years generated a widespread perception among members of the public that accountability simply never materializes. Evidence that these investigations did not simply go up in smoke, as so many others did, would send a signal that the Justice Department is committed to holding people accountable for wrongdoing, even if those people are politically prominent or if their prosecutions would cause a partisan hubbub.
Seventh, is the Justice Department—in particular the FBI—receiving adequate resources for the investigation? Garland recently described the Jan. 6 probe as “the most wide-ranging investigation” in Justice Department history. Such an investigation requires an enormous amount of resources, and there are indications that the department is stressed under the weight of that work. The overwhelming amount of evidence produced by contemporaneous documentation of the riot has left the government struggling to sort through discovery materials quickly enough in ongoing criminal proceedings against insurrectionists.
In March 2022, Deputy Attorney General Lisa Monaco unsuccessfully requested funding for another 131 prosecutors in the Justice Department’s annual budget request—a number that would have doubled the current workforce. To what extent is the investigation hampered by a lack of resources?
Congress might be able to play a useful role here in asking both the Justice Department and the FBI about these constraints—whether the agencies need additional resources, and if so, where they could put those resources to use. When it comes to the FBI, it’s also notable that FBI Director Christopher Wray, unlike Monaco, has not requested additional funding for the bureau’s work on the Jan. 6 investigation at all. Is it really the case that the bureau has enough funding here, given how strapped the Justice Department seems to be on the prosecutorial side? And if the bureau has moved sufficient resources to the Jan. 6 investigations, where did those realigned resources come from—and what areas now have potentially far fewer investigators as a result? Congress could usefully direct those questions towards Wray.
Finally, eighth, what is the Justice Department saying publicly? So far, the department’s public statements have been less revealing than curious members of the public might hope. This is always the case. Garland said recently that the department must “hold accountable every person who is criminally responsible for trying to overturn a legitimate election, and we must do it in a way filled with integrity and professionalism.” And that’s about as forward-leaning as Justice Department leadership has gotten on the matter.
Garland has insisted that 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.” That is certainly true. There are real limitations on what the department can say publicly as it continues its work—among them, the legal requirements of grand jury secrecy. That said, we continue to believe that the department could usefully share more than it has.
What would it look like if Garland wanted to say as much as possible? One possible model is FBI Director James Comey’s announcement of the Russia investigation in spring 2017. Comey testified before Congress that:
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
There’s no reason why Garland could not say something similar. The following, for example, in light of the Post’s reporting, all appears to be true and contains no sensitive information:
I have decided that the public interest is served by making clear that the Department of Justice is investigating efforts to prevent the peaceful transition of power following the 2020 election. This includes whether anyone in the Trump campaign or in government service at that time participated in such efforts. Because this is an open ongoing investigation, I cannot say more about what we are doing and whose conduct we are examining. But our investigative activity includes, but is not limited to, the hundreds of already-indicted and already-completed criminal cases, other activity investigated and disclosed by Congress and the press, allegations that have surfaced in civil litigation, and matters investigated by publicly-announced internal Justice Department probes.
In other words, the Justice Department’s current silence is a choice, not a requirement. Though the department usually does not announce ongoing investigations, its own internal policies explicitly allow for this type of statement in certain limited circumstances. The Justice Manual states that the department may speak on an ongoing investigation when “the community needs to be reassured that the appropriate law enforcement agency is investigating a matter, or where release of information is necessary to protect the public safety.” The current situation would certainly seem to fit into the former category.
A statement of this type would not reveal anything of consequence, but it would communicate something critical: that the department understands the investigation to encompass not simply the riot of Jan. 6 but the larger post-election effort to impede the peaceful transition of power, and that it understands that matter as—at least potentially—a holistic pattern of conduct, not a discrete set of bad acts. That communication would be hugely reassuring.
The debate over whether the Justice Department has acted with appropriate aggressiveness in the wake of Jan. 6 will rage for a long time to come. In the long term, resolving it will require historians and major releases of documents that are not going to become public any time soon.
After Watergate, it was historians like Stanley Kutler who rehabilitated the Justice Department’s own investigation into Watergate. Kutler wrote in 1990, “The perception that the Justice Department’s investigation was compromised was not without reason, but both [Special Prosecutor Archibald] Cox and [Select Committee Chairman Sam] Ervin knew better. The U.S. Attorney’s office had in fact discovered the cover-up conspiracy and had broken the case by the time Cox took control, and before Senator Ervin’s committee provided a public venting of what the prosecutors had learned.”
This longer-term, historical evaluation will require not just years but Freedom of Information Act requests, congressional pushes for documents to be released, and a decision by the executive branch to make as much information public as possible. In the meantime, it will be less useful to debate whether the department has been sleepy than it is to discuss what type of activity going forward would satisfy the public that justice is actually being done.