Garland, Trump, and January 6
Last week marked the first electoral vote count without violence since 2016. Four years after January 6, 2021, people reflected on AG Garland's response to that day and found it lacking. Was it?
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Justice in Brief
In the District of the Virgin Islands, in two separate cases, four members of the Virgin Island government were indicted for accepting bribes from a contractor in order to award construction contracts to the contractor totaling over $1 million.
In the Southern District of New York, a Japanese man entered a guilty plea to numerous charges, including the unlawful transportation of nuclear material out of Burma.
In the Southern District of Florida, a woman was sentenced for participating in and laundering the proceeds from a romance scheme whereby the woman received money from the victims and sent it to foreign conspirators. She retained a portion of the money as her fee.
An insurrection: four years later…
One week from today, Donald Trump will be sworn in as the 47th president of the United States. Last week, the nation marked four years since legions of Donald Trump’s supporters stormed the US Capital building believing that Donald Trump had been rightfully elected and that a Democratic conspiracy had stolen the election from him. The assault led to multiple deaths and dozens of people injured. It delayed, but did not prevent, Congress from certifying the 2020 presidential election results. In the hours and days following the assault, there was bipartisan condemnation of the event. However, when focus shifted to Donald Trump’s conduct during the event and the weeks leading to it, a partisan rift emerged and he was acquitted by the Senate in impeachment proceedings. At the same time, the Justice Department began investigating the incident, attempting to identify those responsible for entering the Capital unlawfully. More than 1000 prosecutions and convictions followed. A question remained, however. What about Donald Trump and those who most strongly asserted the belief that the election had been stolen? Merrick Garland, the United States Attorney General and head of the Department of Justice, never made a decision. Instead, when Donald Trump announced he was running for President, Garland appointed Jack Smith as special counsel. Smith eventually brought criminal charges against Donald Trump. Despite this, Donald Trump was re-elected as President with a majority of the population supporting him. Now, as people look back over the four years since the insurrection, they question Garland’s actions, or lack thereof.
Congressional Democrats leveled a collection of criticisms against Garland. The criticisms focus on Garland’s decision not to appoint a special prosecutor until November 2022. They believe that Garland should have done so sooner. According to California Senator Adam Schiff, the “fatal mistake” was waiting so long to indict Trump. House Judiciary Committee Ranking Member Jerry Nadler, claimed the only reason Garland appointed a special prosecutor was because the House Committee investigating January 6 referred the matter to the Justice Department. Nadler believes this forced Garland to investigate Trump’s conduct. One member of the House Committee, Zoe Lofgren, posited that Garland spent too much time on the “foot soldiers” and missed the bigger picture. Rather than look at the “Stop the Steal” scheme, the Justice Department looked only at January 6. Finally, Minnesota Senator Tina Smith believes that the Justice Department delayed initiating the Trump prosecution because of its concern with being “by the book” and making sure “there wasn’t any political interference.”
While these criticisms assert that the Justice Department should have acted quicker, they begin with the assumption that the Department could have acted quicker.
Whether the Justice Department could have acted quicker is an empirical question but one for which there is not significant evidence. Internal Justice Department deliberations on the matter will not be available for several years. Thus we are left to infer from the available evidence. The first thing to consider is resource allocation. The Justice Department and the DC US Attorney’s Office prosecuted over 1500 people for conduct related to January 6. Over 600 faced charges of assaulting or resisting law enforcement during a civil disorder. Of those 1500 people, just over 1000 have been convicted with 1/3 of them convicted of felony offenses. Of those 1000, 270 had some form of a trial. This included three trials of Oath Keeper and Proud Boy leadership for seditious conspiracy that lasted several weeks. All of this consumed significant Department resources.
Despite the resource consumption, the Department is the largest law firm in the world and so still had the resources to investigate Trump’s connection to January 6. Others within the Department searched for a link between Trump and the January 6 organizers, the Proud Boys and Oath Keepers. Beyond Trump’s reference to them at various points, the Department found nothing. To do this took time. It required Grand Jury subpoenas for bank records. It required scouring the resulting records. It required interviews with people. It required cooperation from group members. This, most likely, consumed much of what Congressional Democrats termed “wasted time.”
Another aspect to consider when assessing whether the Justice Department could have acted sooner involves the potential charges. Many believed Trump should be charged with seditious conspiracy. These were the charges brought against the Proud Boys and Oath Keepers leadership. The most significant problem with seditious conspiracy charges is proof of an agreement. Neither the Justice Department or the House Committee found evidence that Trump agreed with anyone, either explicitly or implicitly, to use force to hinder the execution of a US law.
Without a seditious conspiracy charge, the question became what did Trump do? This likely also presented some problems and caused debates within the Department which would go on for months. For the most part, Trump made lots of false statements and directed other people to take legal action to prevent certification of the electoral college results. To experts and the Department-alike, this sounded like a Klein conspiracy. The gist of a Klein conspiracy is that the object is to obstruct government function through fraud or deceit. The basis for the charge comes from a broad reading of the federal conspiracy statute. Regardless of the evidence, this charge raises legal questions as the US Supreme Court has been on a mission to narrowly construe federal criminal statutes. This likely led to more internal debate. Determining the charges, then, led to more delay.
Another legal consideration that required significant discussion was the viability of charging a former president. Was there an issue of immunity? Was there political speech involved? Did Trump honestly believe the election was stolen such that he lacked the requisite criminal intent? The Justice Department had to research and discuss each of these questions. No doubt the answers varied and produced internal disagreement.
All of this leads to the final aspect of the Department that prevented faster action. Senator Smith identified it. The Justice Department’s long-standing culture is that it does not want to lose its cases. Prior to proceeding it must ensure the case rests on solid factual and legal footing. It prides itself on thorough investigation and thorough legal preparation. It considers all of the arguments and counterarguments. In sum, it is a deliberative process. The Justice Department goes “by the book.” The potential case against Donald Trump, because of the additional political considerations, was not one where the Department could make an exception. Charges of improper politicization were inevitable so the Department had to do everything possible to minimize those allegations.
Ultimately, this is what we want the Justice Department to do. We don’t want them to act rashly. We don’t want them to press forward unprepared. Justice requires a thorough and deliberative process. This is what Merrick Garland’s Justice Department sought and achieved. Anything less would have been a “fatal mistake.”
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!