The days march on, the seasons change, and Donald Trump is seemingly bulletproof, even though there is a mountain of evidence that he knowingly and willfully put together a plan to overthrow the results of the 2020 election and illegally stay in power. Merrick Garland doesn’t go a single day without at least one pundit reviling him. The January 6 Committee is scrutinized for not doing their work properly, the last blow up being the recent Ginni Thomas scandal, which has not resulted in an interview of Mrs. Thomas — again, despite a huge body of evidence that would seem to be screaming for same, in order for justice to be done.
We’re all massively frustrated and in all truth, the clock is ticking. It’s a well known fact that God forbid the Republicans regain control of the House in November, bye bye January 6 investigation.
All of these points are sound and reasonably made. But if you can take a few minutes to read Jennifer Rubin’s analysis in the Washington Post of what we do in fact know about the Department of Justice’s investigation of January 6, you will feel a good deal better.
First, the criticism that the Justice Department has decided not to go after defeated former president Donald Trump is, from all appearances, false. The department continues to reaffirm it has not ruled out going after anyone. A grand jury, the New York Times reports, is already “asking for records about people who organized or spoke at several pro-Trump rallies after the election,” including two events before Jan. 6. It is also seeking “records about anyone who provided security at those events and about those who were deemed to be ‘V.I.P. attendees.’ ” The grand jury has also requested evidence “about any members of the executive and legislative branches who may have taken part in planning or executing the rallies, or tried to ‘obstruct, influence, impede or delay’ the certification of the presidential election.” Ostensibly, that would include Trump and former vice president Mike Pence. […]
Second, none of this means that the Justice Department is acting with a sufficient sense of urgency. The rationale that the feds have to start at the bottom and work their way up — as though this were a Mafia case — makes no sense.
Prosecutors go after foot soldiers if they have no real proof the kingpin has engaged in criminal activity. But the former president has shouted from the rooftops that he wanted Pence to overturn the election. And there is an audio recording of Trump trying to twist the Georgia secretary of state’s arm to find just enough votes to flip his state’s results. Former senior advisers have written books, blabbed in TV interviews and testified before the Jan. 6 committee concerning communications with Trump and other senior advisers.
Just one thought to throw in here, once again: We are on terra incognita. We have no precedent on how to prosecute former presidents for attempting coup d’etats. It may not be so much a lack of urgency on the DOJ’s part, so much as it is we’ve still got training wheels on the bike because we’re in the process of learning how to ride it. Maybe a better analogy is, we are like somebody who has never seen a bike before, but we have seen movies of other people riding and we’re trying to figure out how to do it for real.
Third, there is one investigation of which the Justice Department is properly deferring to a state prosecutor. Fani Willis, the district attorney in Fulton County, Ga., has impaneled a grand jury to investigate Trump’s pressure campaign against secretary of state Brad Raffensperger to manipulate the Georgia’s vote totals.
The Justice Department’s prosecutorial manual plainly states: “In determining whether prosecution should be declined because the person is subject to effective prosecution in another jurisdiction, the attorney for the government should weigh all relevant considerations.” Those factors include “The strength of the other jurisdiction’s interest in prosecution; the other jurisdiction’s ability and willingness to prosecute effectively; and the probable sentence or other consequences if the person is convicted in the other jurisdiction.”
We do tend to forget this ongoing investigation from time to time.
Finally, it doesn’t really matter whether the Jan. 6 committee makes a “referral” to the Justice Department suggesting criminal prosecution. A referral, although the media and lawmakers have made much ado about it, would have no real legal significance, especially because the Justice Department is already well along in its investigation.
That said, public hearings in prime time laying out a powerful case against Trump and a written report summarizing those findings followed by a referral may convey to the public the gravity of the matter. It may also force the Justice Department to explain itself if it decides not to prosecute.
In sum, Attorney General Merrick Garland seems to be conducting a full investigation that could implicate Trump for, among other things, conspiracy to disrupt an official proceeding, conspiracy to defraud the United States or seditious conspiracy. Someone would be wise to point out to Garland the dangers of unnecessary delay. As publicly available information and daily revelations from Trump’s inner circle accumulates, Americans have every right to expect the former president’s prosecution in a timely fashion — or a darn good reason why the Justice Department won’t pursue him.
The dangers of unnecessary delay are considerable. Evidence has a way of disappearing and witnesses have ways of coordinating their stories. This is the clear downside of delay and the main reason that Garland is so routinely and roundly criticized. However, on the other hand, you have heard the old cliche, “If you’re going to shoot at the King, you’ve only got one shot and you’ve got to make it count.” Doing a sloppy job in prosecuting an historic case like this would be catastrophic. Garland knows this. Anybody who can stop and think calmly for a moment knows this. So he has to proceed with all due caution.
There really is no other way when you’re on terra incognita than to go slowly and surely. When we finally get to Watergate-level hearings in prime time, and I say when not if, it will all be worth it.