Published by The Lawfare Institute
in Cooperation With
Editor’s Note: The following article should be read in conversation with “In Defense of the Justice Department” by Benjamin Wittes. Together, the articles articulate two sides of a debate over criticisms of the Justice Department’s approach to investigating the insurrection and Trump’s personal criminal culpability for efforts to overturn the election.
As the Jan. 6 committee continues to build its case for Donald Trump’s criminal culpability regarding the Capitol insurrection, the Justice Department has come under increasing criticism for its failure to take public action against the former president. Rep. Adam Schiff, who sits on the Jan. 6 committee, commented on MSNBC that “it is unprecedented for Congress to be so far out ahead of the Justice Department in a complex investigation.” According to the New York Times, President Biden has said privately that he wishes Attorney General Merrick Garland would “act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.” Following the most recent congressional hearing on Jan. 6, Andrew Weissmann, formerly a prosecutor working under Special Counsel Robert Mueller, warned that the Justice Department seems to be taking “the wrong approach to investigating the Jan. 6 insurrection” by zeroing in with a “myopic” focus on the specifics of the riot itself, rather than the broader scope of efforts to overturn the election.
In light of this criticism, Benjamin Wittes has written a defense in Lawfare of the department’s work investigating the insurrection. He invites us to take a few deep breaths and drink a cup of warm tea. Our breathing is fine, and we’ve had enough tea. It’s reasonable at this point for the public to be frustrated by, and for journalists and commentators to start pushing on, the Justice Department’s continuing silence and apparent lack of urgency regarding Trump’s personal criminal culpability. We’re not arguing for any specific investigative or prosecutorial steps, the utility of which would be hard to gauge in the absence of more information about where the criminal probe stands. We are, though, concerned that the department may be conceptualizing its own responsibilities—to both the public and the rule of law—too narrowly in the midst of a genuinely unprecedented historical moment.
Some of the disapproval of the department’s progress is overstated. Criminal investigations do take time, and the Jan. 6 investigation is one of unprecedented complexity. Tweeting “do your job” at Attorney General Merrick Garland isn’t enormously helpful. Likewise, the legal requirements of grand jury secrecy likely prohibit the department making public a great deal of the information that Americans might crave about the ongoing investigation. But all the same, the mounting criticisms of the department’s reticence speak to something real. And saying so is not equivalent to chanting “lock him up.”
It’s not that the Justice Department is sitting on its hands. On the contrary, we’re conscious that the Jan. 6 investigation is one of incredible complexity, with over 840 federal cases charged thus far and 17 defendants indicted for the extremely serious charge of seditious conspiracy. The resources required are tremendous. As the department wrote in one filing, “The investigation and prosecution of the Capitol Attack will likely be one of the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence.”
Reporting has also revealed that the department is investigating two aspects of the Jan. 6 insurrection in particular that would seemingly bring its attention closer to Trump himself. First, investigators led by federal prosecutor Thomas Windom are looking into the Trump campaign’s scheme to create slates of unofficial pro-Trump electors—“fake electors,” as they’re often referred to in the press—as part of a plot to keep Trump in power. Federal agents recently sent out a number of subpoenas to some of those who signed on to serve as fake electors for Trump and to others involved in the effort. At least one top Nevada Republican Party official has reportedly been served with an FBI search warrant in connection with the false-elector inquiry there. And according to the New York Times, Windom’s investigators are looking into “the roles played by some of Mr. Trump’s top advisers … with a mandate to go as high up the chain of command as the evidence warrants.”
At the same time, the Justice Department Office of Inspector General is conducting an investigation of Jeffrey Clark—the department official who sought to replace Acting Attorney General Jeffrey Rosen and leverage the Justice Department’s power to keep Trump in office—and John Eastman, the outside legal adviser behind the effort to block the certification of the electoral vote on Jan. 6. In recent weeks, authorities have carried out warrants to seize Eastman’s phone and search Clark’s house. The Clark warrant reportedly “indicated that prosecutors are investigating Mr. Clark for charges that include conspiracy to obstruct the certification of the presidential election,” according to the Times.
Yet serious questions remain about the extent to which the department has pursued the criminal culpability of Trump himself, especially in comparison to the work of the Jan. 6 committee. As we’ve written previously, it’s important to remember that the committee’s purpose is and should be different from the department’s: Congressional investigators, of course, can’t bring prosecutions, but they can and have focused on communicating the story of Jan. 6 to the public in as much detail as possible. What’s concerning is that the committee has apparently produced information unknown to the Justice Department, which is armed with vastly more investigative resources and greater power when it comes to compelling information. As Wittes notes, it’s not unheard-of for a congressional investigation to turn up material not yet uncovered by a parallel Justice Department probe. The specifics of what the committee has found that the department hasn’t, though, raise questions about how federal law enforcement has conceptualized its work and set its priorities.
Most recently, the Times reported that testimony by White House aide Cassidy Hutchinson, which revealed details of which the department had not previously been aware, “jolted top Justice Department officials into discussing the topic of Mr. Trump more directly.” Prior to Hutchinson’s testimony, according to the Times, “[o]vert discussion of Mr. Trump and his behavior had been rare, except as a motive for the actions of others.” Rather, officials had “tightly steer[ed] discussion to the details of specific cases being developed.” Likewise, according to the Wall Street Journal, Windom “previously met with some skepticism within the department when he pushed to explore the activities of several members of Mr. Trump’s inner circle”—though, the paper suggests, this may be changing in the wake of the most recent committee hearings. And as Wittes acknowledges, the fact that the Justice Department inspector general—rather than, say, the FBI—is investigating Clark and Eastman raises questions about whether the various investigations of Jan. 6 are as coordinated as they should be.
The picture here is not of a department involved in a thorough probe of the former president but, rather, of investigators startled into attention by the work of the Jan. 6 committee. As Weissmann put it in a recent interview, this does not seem to have been an investigation that asked, “Was there anyone in the White House, up to and including the former president, who was orchestrating a plan to undermine the democratic vote in the last election,” despite early indications that it might be. Rather, from what’s been reported, it seems more like an investigation in which the department has invested an enormous amount of horsepower into prosecuting criminals for attacking the Capitol on Jan. 6, but that has also, perhaps until recently, avoided the hot potato of Trump’s personal culpability—which need not, and should not, have been in question solely as it relates to that attack.
As Wittes notes, recent evidence unveiled by the Jan. 6 committee strengthens the case that Trump was at the center of a well-orchestrated conspiracy around efforts to overturn the election. But investigating Trump didn’t require a predicate for conspiracy to launch an insurrection—it required a predicate for a crime. If the Justice Department wanted to follow the facts wherever they led, it’s been clear for a long time that they led directly to Trump himself. Or was the department only looking at facts relating directly to the attack on the U.S. Capitol? As has been reported for months now, Trump engaged in other conduct in his efforts to overturn the election that any reasonable prosecutor may have suspected could be criminal in nature and therefore warrant investigation and perhaps eventual prosecution. Trump’s call to Georgia Secretary of State Brad Raffensperger demanding he “find 11,780 votes,” for example, was reported on Jan. 3, and a Georgia prosecutor commenced an investigation of Trump focusing on that call that February. That prosecutor recently sent out 16 target letters to fake electors while summoning numerous out-of-state witnesses to testify before a special purpose grand jury, including such key national Trump campaign figures as Rudy Giuliani, John Eastman, Cleta Mitchell, and Kenneth Chesebro. If the Justice Department eschewed evidence of Trump’s other potential crimes in the interest of waiting to see whether its investigation of Jan. 6 rioters might eventually reveal a direct connection between Trump and the violence at the Capitol, it is fair to ask why.
There are, of course, many ways to structure and conduct investigations. And from our position outside the department looking in, there is a great deal that we—and other members of the public—don’t, and can’t, know. But from where we stand, the department’s apparent investigative strategy is worrying.
In deciding whether to investigate and potentially prosecute Trump, the Justice Department faces the unenviable task of balancing two competing values—both of which touch on the core of what people mean when they describe “the rule of law.” On the one hand, it is a dangerous thing to turn the power of federal law enforcement against a former president. There are excellent reasons why such a thing has not before been attempted: It potentially unseals a Pandora’s box of political prosecutions, and risks damaging the legitimacy of federal law enforcement in the eyes of the former president’s supporters. The inferno of controversy around the FBI investigations of both Hillary Clinton and the Trump campaign around the 2016 election is a good reminder of why the department has incentives, for good or for ill, to step lightly here.
On the other hand, though, the rule of law means that no one, even a former president, is above the law. At some point, the conduct at issue becomes so egregious that not taking action—apparently in the interest of avoiding controversy—is even more damaging to that legitimacy and to public confidence. In a democracy currently on shaky ground, this is not exactly reassuring. As Garland himself said in his first speech to department staff as attorney general, Justice Department norms require that there not be “one rule for the powerful and another for the powerless.”
There’s undoubtedly an appeal in claiming that the Justice Department’s performance thus far is an inevitable consequence of pursuing this investigation “by the book,” the way that the department would investigate a drug trafficking conspiracy or any other crime. It is a helpful shield against concerns that the department cares more about appearing apolitical than it does about seeking justice. At a certain point, though, the refusal to recognize the unique danger of this moment, and of Trump himself, itself becomes absurd. At such a time, it is appropriate for the department to take a step back and evaluate its assumptions about how investigations like this (to the extent any can be said to exist) “must” proceed. We’re not proposing a wholesale abandonment of the department’s tried-and-true methods—but we are suggesting that the historic challenge it’s facing requires rising to the occasion.
Defenders of the Justice Department are quick to raise institutionalist arguments. They claim that deviating from tradition will set a bad precedent, that the department must—in order to protect its credibility—prioritize continuity over the ingenuity required to meet the demands of the moment. They worry that prosecuting a former president will threaten the institutional integrity of the department. These are valid concerns, and to some degree we share them.
But the real question is this: institutional integrity in whose eyes? Americans’ confidence in government institutions is at a new low this year—including with respect to the criminal justice system. Only about 20 percent of Americans trust the federal government to do what is right. (In this sense, it is telling that Wittes’s defense of the department repeatedly references the criminal investigation after Watergate—even though Watergate is exactly when Americans’ trust in the government declined precipitously.) And lest the critics blame other government institutions for this dismal overall performance: A poll from this April found that only 31 percent of U.S. citizens view the Justice Department as trustworthy. If the department is, as it claims, working “to earn the trust of, and inspire confidence in, the public [it] serve[s],” the public’s views should factor into the analysis.
Besides, the whole theory of institutionalism is that government institutions, with their strict adherence to preserving unwritten norms, protect democracy. Americans overwhelmingly (93 percent) share this goal. Yet a majority of them (64 percent) believe that U.S. democracy is in crisis and at risk of failing. And a significant majority (87 percent) believe that America’s system of government is in need of changes.
We’re not suggesting that the department’s decision to prosecute should be dictated by public opinion. But when the decision is irreconcilably wrapped up in bigger questions about the rule of law, public perceptions should not be dismissed as irrelevant or merely emotional. And the Justice Department should be wary of overemphasizing the concerns of purported institutionalists at the expense of the American people. For this reason, it’s not enough for defenses of the Justice Department’s conduct to consist of demands for patience, eye-rolling at how people just don’t understand, or calls to take deep breaths and pour oneself another cup of tea. Yes, the rule of law requires continuity and stability. It also requires a degree of responsiveness to a widespread loss of public confidence in that same system.
And we’re not the only ones arguing that what the public thinks matters when it comes to the Justice Department’s legitimacy. If you don’t believe us, just listen to Merrick Garland, who announced in that same speech to department staff that the department must work to “retain the trust of the American people” and “show the American people by word and deed that the Department of Justice pursues equal justice and adheres to the rule of law.”
In some ways, Wittes has the easier argument in suggesting that everybody should just calm down and let the Justice Department do its work. In comparison, we don’t—and can’t—have a clear request of the department, precisely because of the ambiguity around what exactly investigators are doing. We don’t want to suggest that Garland will have failed if the department doesn’t bring a prosecution of Trump by some arbitrary deadline. We’re not demanding that Garland or Deputy Attorney General Lisa Monaco personally clap Trump in irons. On the contrary, anyone who hopes that the former president will someday see the inside of a federal courtroom should want the Justice Department to proceed carefully, methodically, and apolitically, so that any criminal charge has the greatest chance possible of standing up in court.
So what exactly are we asking of Garland? One possibility is simply for the department to speak more publicly about what it’s doing. (Monaco may have taken a step toward that recently in clarifying that the department will not halt its investigation if Trump announces a second presidential run.) Generally, officials do not announce or comment on ongoing investigations—for good reasons. But this rule is not ironclad: Justice Department policy allows for exceptions “when the issue under investigation has already received a lot of publicity, or where the community needs to be reassured that the Department is investigating the incident.” A number of former federal prosecutors and experienced lawyers have argued that the department should take the opportunity, if it is indeed investigating Trump, to reassure the public of that fact.
Another possibility is for the department to speak up more in the abstract about the considerations that go into its thinking on accountability after Jan. 6. As one of us wrote recently—with Wittes, in fact:
Perhaps Garland’s view is that the risks of criminally investigating a former president, even in this time, are too great to take, too much of a breach of the department’s traditions. But he cannot expect people to understand that, or have a reasoned discussion of it, without first explaining it to them. And in the absence of an explanation, members of the public will come up with their own ideas—like weakness or lack of commitment to accountability. That silence undercuts the project to which Garland has committed himself.
And another possibility is simply that the department more clearly convey a sense of urgency and purpose—that it 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.
Commenting on this investigation from outside is a little like trying to draw a map of a locked room based only on what we can see from peering through a keyhole. For all we know, officials at the Justice Department may have already weighed the concerns we set out here. But the perspective of those outside the department—including regular, frustrated citizens as well as commentators like ourselves—are also of value as the country collectively sorts through the question of how to recover from an attempted insurrection and what accountability looks like.
If the department conducts a pristine investigation and builds a textbook indictment, perhaps it will have met its own definition of preserving “the rule of law.” But the American people the department pledges to serve are not governed by textbooks. And now is not the time for esoteric definitions to prevail over a common-sense understanding of what the rule of law means, or how it should be reinforced in this moment. After all, who is the rule of law for?