Will Justice get to Trump? Garland is facing questions

The Department of Justice (DOJ) is facing mounting questions about whether its Jan. 6 investigation is building up to scrutinizing former President Trump’s role in the attack on the Capitol or the broader effort to overturn the results of the 2020 election.

More than a year after Attorney General Merrick Garland was confirmed, there has been no sign that federal prosecutors have set their sights on Trump or his close allies.

Elie Honig, a former federal prosecutor who spent eight years with the U.S. attorney’s office in Manhattan, said that Garland’s incremental approach has so far shown little interest in any powerful figures who worked to keep Trump in office.

“It makes clear that he is structuring this investigation in an unduly myopic, bureaucratic manner that is not precisely focused on the true power sources here,” Honig said.

Garland has indicated that the DOJ is taking an incremental approach to its investigation, beginning with prosecutions against rioters who can be easily tied to the attack on the Capitol then working up to various plotters, funders and others who may have had an indirect role in the events of Jan. 6, 2021.

In a January speech marking the first anniversary of the attack, the attorney general delivered a speech outlining that approach, apparently acknowledging the frustration voiced by many Democrats about the lack of apparent progress in the investigation.

“We build investigations by laying a foundation,” Garland said. “We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.”

“Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.”

There have been some public indications that federal prosecutors are making progress with that approach.

Earlier this year, the DOJ brought its first seditious conspiracy charges against a group of leaders of the far-right Oath Keepers as well as similar conspiracy charges against prominent members of the Proud Boys.

And the department has reportedly expanded its investigation, directing new scrutiny toward the planning of the “Stop the Steal” rally that directly preceded the storming of the Capitol and a scheme to promote a fake slate of electors who would have cast their “votes” for Trump.

But amid growing frustration among Democrats, some critics have questioned the efficacy of the bottom-up approach as a way to ultimately hold Trump accountable.

Ankush Khardori, a former DOJ trial attorney specializing in major financial fraud, believes the approach has been “too cautious and too incremental” in light of what has already been publicly reported about Trump’s subversion efforts in the weeks leading up to Jan. 6.

“It’s worth thinking about what that has left off the table,” Khardori said, pointing to Trump’s effort to pressure then-Vice President Pence into derailing the certification of the Electoral College votes as well as a recorded call in which he pressured the Georgia secretary of state to “find” enough votes to erase President Biden’s margin of victory in the battleground state.

It’s unclear whether the DOJ is investigating Trump or plans to charge him, but there has been no outward indication that the department has devoted any resources toward such an effort.

A spokesman for Garland did not respond to a request for comment, and in public appearances Garland has said he would keep with DOJ practice of not commenting on investigations.

Khardori said he’s less interested in the question of whether Garland is sincere in vowing to take on those involved in Jan. 6 “at any level” than he is in examining whether the department’s leadership has put it on course to assigning responsibility at the highest possible level.

“If you were seriously concerned about Donald Trump’s conduct, or the people in his immediate orbit both in the White House and in his campaign, were there and are there other ways of conducting a federal investigation that might more quickly and directly resolve whether those people have criminal liability?” Khardori said. “That, to me, is the much more important question, not should we take Garland at his word.”

The DOJ’s critics say one problem with an incremental approach is that it assumes investigators will uncover a direct line between the Trump White House and the Jan. 6 rioters.

“This notion of, ‘Well, you start on the ground and work your way up’ — it’s an easy refrain that people love to repeat, but it’s not really true. It’s not what good prosecutors do,” Honig, the former federal prosecutor, said.

“Good prosecutors look for the highest possible point. And if the evidence takes you midway up the ladder or directly to the top, you go there, and you build your case. But this notion that he’s going to start with the guys in face paint and bull horns and he’s going to flip that guy into some other guy into some other guy into some other guy to me is completely unrealistic,” he said.

“It presupposes that there’s one cohesive conspiracy, when in fact what we might have here is various overlapping and aligned conspiracies,” he continued. “I don’t know if you can prove that Donald Trump is a co-conspirator with the QAnon shaman, but I believe you can prove that Donald Trump conspired with the people immediately around him to try to steal the election through fraud before Jan. 6, and potentially on Jan. 6.”

Garland and the DOJ have plenty of defenders among the liberal-leaning circles of former federal prosecutors and other legal observers. They say the department is right to be cautious and methodical and believe investigators are inching toward Trump and his inner circle.

“No. 1, the Justice Department investigates crimes, not people. And I think that has been a big misunderstanding, like, ‘Why aren’t they investigating Trump?’ Well, they are. The evidence gets there,” said Barbara McQuade, a former U.S. attorney who has laid out her own theory for prosecuting Trump over his efforts to subvert the election.

“Does it make sense to go bottom up? I think every time, absolutely,” McQuade said. “You need to know every document written about the event, and you need to talk to every person with information about the event. And that usually means start with the low hanging fruit.”

McQuade said spectators can already see “just a mountain of circumstantial evidence that Trump knew there was no [election] fraud” — a detail she sees as being key to showing Trump acted in bad faith. But without probing for exonerating evidence — and talking with those at every level — the DOJ risks losing in court.

“To build a corruption case takes years. It is not the kind of thing you can do in an instant,” she said. “I think you wait until you’re close to the end before you question people like that in the inner circle. Because you want to be as educated as you can be about what happened.” 

Others hoping to see aggressive action by the DOJ have developed some cautious optimism that the department is heading in that direction.

Jennifer Rodgers, another former federal prosecutor who spent 13 years at the Manhattan U.S. attorney’s office, said that until earlier this year, she saw little sign that Garland had any appetite for what would undoubtedly be a politically fraught investigation into the former president. 

But she said she’s seen heartening signs in recent months, including the attorney general’s speech in January, that the DOJ’s leadership is not shying away from implicating high-level leaders if that’s where the evidence leads.

“At this point, I’m inclined to wait and see what they do,” Rodgers said. “I don’t know that there’s anything wrong with the approach as long as they have actually been diligently working on the bigger picture of the folks who propagated the big lie and actually caused it all to happen behind the scenes. And that’s, of course, what we don’t know for sure.”