In Defense of the Justice Department

Editor’s Note: The following article should be read in conversation with “​​Is the Justice Department Meeting the Moment?” by Quinta Jurecic and Natalie Orpett. 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.

Attorney General Merrick Garland has a serious problem on his hands: Much of the country has lost patience with the Justice Department’s Jan. 6 investigation.

It’s not just #Resistance Twitter and the occasional irresponsible member of Congress any longer. They have been braying at the attorney general for months to “do your job” and get on with indicting Donald Trump and all the former president’s men.

Now it’s also former Mueller investigation prosecutor Andrew Weissmann (“A myopic focus on the Jan. 6 riot is not the way to proceed if you are trying to follow the facts where they lead and to hold people ‘at any level’ criminally accountable, as Attorney General Merrick Garland promised”). It’s the normally sober and careful Jan. 6 committee member and Intelligence Committee chairman Adam Schiff (“It is unprecedented for Congress to be so far out ahead of the Justice Department in a complex investigation”). It’s the highly experienced and knowledgeable former FBI agent Peter Strzok (“I’ve defended DOJ and the FBI for a long time about January 6th. But it’s time for Congress to start asking questions”).

And it’s President Biden himself (“[W]hile the president has never communicated his frustrations directly to Mr. Garland, he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6”).

Most upsetting—to me, at least—it is my esteemed Lawfare colleagues Quinta Jurecic and Natalie Orpett, who argue in these pages today that “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 on the matter of Trump’s personal criminal culpability.”

Oh y’all of little faith! Take a deep breath, everyone. Maybe take another one. Drink a cup of warm tea. And allow me to say a few words in defense of the United States Department of Justice, the Federal Bureau of Investigation, and the investigation they are conducting of the insurrectionary shanda that was Jan. 6.

The conventional wisdom—that the department is dragging its feet, focusing on the little guys for the less-important sort of crimes—seems to me very likely wrong. At a minimum, it is certainly not clearly correct at this stage. The criticism is at the very least premature.

No, Garland hasn’t kicked down the doors of Mar-a-Lago and dragged Donald Trump in the former president’s pajamas into a patrol car. He hasn’t frog-marched Mark Meadows or Rudy Giuliani in handcuffs into the E. Barrett Prettyman Courthouse. Indeed, he hasn’t—yet—taken any overt investigative steps against the figures at the top of the Trumpist totem pole.

But here’s the thing: In virtually no conceivable investigation conducted by the Justice Department would one have expected investigators to have done these things after a mere 19 months of a probe involving more than a thousand likely defendants scattered nationwide and suspected of a remarkable array of nonviolent, violent, and insurrectionary offenses.

The real story here is one of a remarkably quick and aggressive investigation, a probe that has brought enormous prosecutorial and investigative resources to the table, prosecuted an astonishingly large number of people in a short space of time, lost only a few cases, and crawled swiftly up the ladder of defendant importance. It is a probe that is today knocking on the doors of defendants within Trump’s inner circle and elsewhere in the political echelon of Trumpist politics. It is a probe that will only heat up more as the months grind on.

Let’s start with some basic principles.

Complex federal investigations always take a long time. Always. They take a long time because they involve a great deal of information, and the FBI and other investigators have to learn all of it. Federal prosecutors can’t have surprises at trial; they can’t afford to get blindsided with material they didn’t know about. A federal prosecution is not an environment in which “good enough” is good enough.

To bring cases that will stand up in court, they need proof beyond a reasonable doubt, and they need it using admissible evidence only. They need it for every single element of every criminal offense they seek to charge, and they need it in a form that will convince each and every juror. In situations involving high-profile defendants and politically sensitive matters, the standards go up even further—not because the law is different for such people but because the capacity for institutional embarrassment induces a certain additional care.

These are the baseline realities. Now let’s add some factors particular to the Jan. 6 investigation. Here, after all, we are dealing with some untold number of thousands of investigative subjects. Nearly 850 have been charged, but that number actually understates the number who have faced investigation. Building that many cases takes time, personnel, and court resources. A lot of people seem to regard the Jan. 6 investigation as two separate investigations—one of the riot and other of Trump and his immediate coterie. But the Justice Department cannot separate them in this fashion, and it will not. The reason is that the two fact-patterns are intricately interlaced. Trump didn’t just summon and address the crowd. He acted in myriad ways in dialogue with the crowd—for example, ordering that the magnetometers be removed so that more people, even armed people, could get onto the Ellipse. He actively sought to join the crowd. He watched the mob on television all afternoon. Artificially separating Trump’s behavior from the riot as an investigative matter would be a serious mistake.

The Justice Department’s investigation is quite unlike the Jan. 6 committee’s probe, which is a top-down investigation. The committee started with the question of political accountability, and it has investigated all aspects of that question from the beginning. It set out, in other words, to tell the story of Donald Trump’s conduct from before the election until the insurrection. As such, it has interviewed all kinds of people who had insight into and engagement with the president’s course of conduct without needing to think too hard about what precise crimes—if any, at all—it was investigating. That’s the committee’s job.

The resolution that created the committee made clear its storytelling purpose: “To investigate and report upon the facts, circumstances, and causes relating to the January 6, 2021, domestic terrorist attack upon the United States Capitol Complex ... and relating to the interference with the peaceful transfer of power ... as well as the influencing factors that fomented such an attack on American representative democracy[.]”

But the Justice Department’s investigation is not and cannot be fundamentally a storytelling exercise. The Justice Department brings criminal cases. It investigates crimes, not people. It starts investigating when and only when there is evidence of a crime. The department’s job is not to “report on the facts, circumstances, and causes” of complex mixtures of criminal, noncriminal, and First Amendment-protected activity. Garland never promised to do that. And if he ever did, it would be tantamount to announcing that he was targeting the former president for prosecution—investigating Trump, not some crime of which Trump was suspected. For an attorney general to do this would deal a devastating blow to the institutional integrity of the Justice Department.

Here is how Garland has described what he and the Justice Department are doing: 

We build investigations by laying a foundation. 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.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.

We follow the physical evidence. We follow the digital evidence. We follow the money.   

But most important, we follow the facts — not an agenda or an assumption. The facts tell us where to go next.

Weissmann argues that instead of approaching the matter as a traditional bottom-up investigative pyramid, the department should ditch its “myopic focus on the Jan. 6 riot” and treat the investigation instead as a “multiprong conspiracy—what prosecutors term a hub and spoke conspiracy—in which the Ellipse speech by President Trump and the Jan. 6 attack on the Capitol were just one ‘spoke’ of a grander scheme.” Weissmann goes on:

[W]hat the [congressional] hearings have revealed is evidence of a plot orchestrated by Mr. Trump and his allies in the White House and elsewhere — including players from the Mueller investigation like Roger Stone, Michael Flynn and Rudy Giuliani as well as new players like Jeffrey Clark and John Eastman. The “spoke” of the Jan. 6 riot should be seen and investigated simultaneously with the other “spokes”: orchestrating fake electors in key states, pressuring state officials like those in Georgia to find new votes, plotting to behead the leadership of the Justice Department to promote a lackey who would further the conspiracy by announcing a spurious investigation into election fraud, and pressuring Vice President Mike Pence to violate the law.

This may be a plausible way to think about the matter now, the hearings having revealed some window onto the larger wheel and its other spokes. And as Weissmann acknowledges, there’s some reason to believe the department is now doing more or less what he suggests. 

Initiating the investigation as such a hub-and-spokes investigation, however, would not have been an appropriate way to proceed back in March 2021, when Garland became attorney general—and note that Weissmann wasn’t suggesting it then. Remember that back then, the full picture we now have of the wheel had not yet emerged. The public had glimpses of some aspects of the wheel, including some important ones: Most importantly, the New York Times had revealed the attempted palace coup at the Justice Department, and Trump’s call to Georgia Secretary of State Brad Raffensperger had been reported as well. So the department could certainly have opened a probe on Trump then. That said, the idea of a well-orchestrated, multifaceted conspiracy to overturn the results of the election by means legal and illegal—led by the then-president and starting before the election even took place—was not then a supportable predicate theory. Had the department opened a probe of Trump then, it would have been for discrete bad acts.

In other words, while I agree with Weissmann that—to the extent the department is not already treating the matter with this broader lens—the hearings “should ... transform” the investigation in this direction, I don’t see that as a defect in the investigation’s conduct to date. I see it, rather, as an example of the department’s following the evidence wherever it leads. New evidence has come from all over, including from the press, as well as from congressional committees that have conducted more than a thousand formal interviews. And in the meantime, while these predicate facts have developed, the Justice Department has prosecuted hundreds of cases.

One way to assess the department’s actual performance is to ask yourself the following question: Given what Garland has said about the probe and the way we know complex federal investigations work, and given the specific complexities of this probe in particular, what would we have expected an aggressive investigation to look like had we been asked to forecast the matter when Garland became attorney general?

Before you answer, keep in mind that the so-called Watergate Seven—the top aides to President Nixon—were not indicted until March 1974, almost two years after the Watergate break-in took place. Nixon, for his part, was still unindicted at the time of his pardon more than two years and three months after the crime. The Watergate Special Prosecution Force did not wrap up its work until 1977, fully five years after the break-in and nearly three years after Nixon left office. And Watergate, let’s recall, involved a far less complicated fact pattern than Jan. 6, one with only a tiny fraction of the number of potential witnesses and defendants.

So what would we have hoped to see had we imagined an aggressive investigation a year and a half ago? We would have wanted to see a large and ever-growing number of indictments. We would have wanted to see charges getting more serious over time and indictments involving defendants ever-higher up in the investigative food chain. We would have wanted to see evidence of investigative activity involving people within the political echelon—not just rioters and riot organizers. And we would have wanted to see evidence that as new fact patterns come into focus regarding that political echelon, the investigation locks in on them.

It is against this background that we should look at what the Justice Department has actually done so far. As of July 18, according to the George Washington University Program on Extremism, the department had charged 843 individuals for crimes related to Jan. 6. Of these people, 337 have already pleaded guilty or been convicted.

Contrary to the dismissive trope among Twitter commentators and on cable television, the department’s indictees are not accused just of trespassing crimes and misdemeanors. Two major indictments, one involving the Proud Boys and one involving the Oath Keepers, allege seditious conspiracy. A large array of others involve violent felonies.

The department has also been methodically creeping its way up the food chain. Whereas a good number of early cases involved trespassing, misdemeanor pleas, and other nonviolent offenses that could be resolved with minimal jail time, more recent cases have involved increasingly serious violent offenders.

Perhaps more importantly, the department has of late been knocking at the doors of members of the political echelon, including Trump insiders. Weissmann concedes this point, noting that “[r]ecently, federal agents conducted a search of the home of [Jeffrey] Clark, whom Mr. Trump considered elevating to be acting head of the Justice Department, and seized the phone of [John] Eastman, a lawyer who advised Mr. Trump on efforts to overturn the election.” But the pattern is actually broader than Weissmann acknowledges. For example, the department has issued subpoenas in connection with the fake electors scheme, it has sought information about rally organizers, and it has executed a search warrant in Nevada in connection with the fake electors scheme. There’s a lot of activity going on, probably a great deal more than the public can see.

And Trump insiders are feeling the squeeze. “I keep waiting for the feds to come raid my shit,” one “current close adviser” to Trump recently told Rolling Stone: “I’m not sure how high on the food chain the Department of Justice considers me, but it wouldn’t be the most out-of-the-blue thing if I … got subpoenaed or served a search warrant.”

Even Trump himself seems to understand the investigation as closing in, saying he wants to be president again to shut the investigation down. As Rolling Stone elsewhere put it: 

In recent months, Trump has made clear to associates that the legal protections of occupying the Oval Office are front-of-mind for him, four people with knowledge of the situation tell Rolling Stone.

Trump has “spoken about how when you are the president of the United States, it is tough for politically motivated prosecutors to ‘get to you,[’]” says one of the sources, who has discussed the issue with Trump this summer. “He says when [not if] he is president again, a new Republican administration will put a stop to the [Justice Department] investigation that he views as the Biden administration working to hit him with criminal charges—or even put him and his people in prison.”

In other words, the investigation in practice looks almost exactly like what we would have expected it to look like if prosecutors were taking this activity very seriously and methodically working their way up the chain. 

So what then is the substance of the case that Garland and the Justice Department have acted timidly? It consists, as best I can discern, of four basic propositions:

• First, that the department hasn’t acted faster, specifically with reference to the political echelon.
• Second, that it has made a few specific investigative and prosecutorial judgments with which critics disagree.
• Third, that the Jan. 6 committee developed certain bodies of information before the department did—specifically, that the department appears to have learned about Cassidy Hutchinson from the committee. 
• Fourth and most important, that Donald J. Trump remains unindicted.

Let’s take these points in turn.

The first complaint seems to me so vague as to be almost meaningless. The statutes of limitations on these offenses are nowhere near lapsing. From a legal perspective, then, the Justice Department has the time to not cut corners. Why then should it respond to what amounts to political pressure to do things faster by conducting its investigation in a fashion that departs from best practices in a complex multi-defendant matter?

In any event, how long is too long for this investigation to take if the department means to conduct it rigorously, to garner the cooperation of the requisite witnesses, to prosecute those who need to be flipped, and to work through what will be a slew of complex legal defenses? Surely nobody is arguing that the Justice Department should skip important steps or go off half-cocked or without bothering to dot its i’s and cross its t’s.

If the argument is that prosecutors should dot faster and cross more energetically, why are critics so certain that the problem is on the prosecutorial end—rather than that, say, key witnesses are not yet in a cooperative posture? It seems to me that anyone who is arguing that the Justice Department is taking too long has an obligation to answer the question: On what date passed was the propriety deadline breached, and where did that deadline come from?

The more serious question, in my view, is the related one of whether the effort has been adequately staffed and resourced—particularly at the FBI. While the department realized early that the Jan. 6 accountability problem was going to be big, it might have been late to the game in realizing just how big. To my knowledge, Congress has not asked either Garland or FBI Director Christopher Wray whether they are currently resource constrained in their response to Jan. 6. It seems likely, in my view, that resource constraints have been a real factor—one that necessarily means the investigation has not progressed with the speed and urgency it might have. Given the gravity of the event, that would be a real problem, though not one you can address by tweeting at the attorney general to do his job.

The second point, which takes issue with individual Justice Department actions, strikes me as more compelling. The offending steps include, most particularly, the declination of prosecutions in the contempt cases of Mark Meadows and Dan Scavino, both of whom defied subpoenas from the Jan. 6 committee, citing executive privilege. The committee itself questioned the department’s judgment on these matters in a statement from the chairman and vice chair on June 3, which noted that “we find the decision to reward Mark Meadows and Dan Scavino for their continued attack on the rule of law puzzling” and stated: “We hope the Department provides greater clarity on this matter.”

The specific merits of the matter are complicated and beyond the scope of this piece but are treated in detail in this excellent piece by Rohini Kurup and Jonathan Shaub. Suffice it for present purposes to say that given the Justice Department’s general positions on executive privilege and testimonial immunity matters, a prosecution here would have been difficult.

One doesn’t need to evaluate this point, however, to see the whole matter as somewhat extraneous to the question of the value and integrity of the larger Justice Department investigation. Enforcing congressional subpoenas, after all, is a small, though important, part of the ball game with respect to Jan. 6 criminal accountability. While it is reasonable for those who support the committee to be disappointed at the failure of executive branch support in these instances, this hardly means the executive branch’s own criminal investigative efforts are lackluster.

Strzok picks a more concerning specific nit: the prominent involvement of the Justice Department inspector general in the investigation, rather than the FBI, in aspects of the investigation. The FBI is apparently not taking the lead on either the Clark or Eastman aspects of the probe, which have their origins in an inspector general investigation and have apparently remained within the inspector general’s office. This is concerning both because the FBI’s investigative resources are wildly better than the inspector general’s and because it suggests that probes that ought to be considered spokes connected to the same hub may be less integrated than would be ideal. I agree with Strzok that this is a matter worth keeping an eye on. It does not, however, make me despair of the entire investigation.

The third point—that the committee has beaten the Justice Department to fact patterns and key witnesses, Hutchinson in particular—is perhaps the most interesting argument, and the factual claim is almost certainly true. The New York Times has reported:

The electrifying public testimony delivered last month to the House Jan. 6 panel by Ms. Hutchinson, a former White House aide who was witness to many key moments, jolted top Justice Department officials into discussing the topic of Mr. Trump more directly, at times in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco.

…

[S]ome of her explosive assertions — that Mr. Trump knew some of his supporters at a rally on Jan. 6, 2021, were armed, that he desperately wanted to join them as they marched to the Capitol and that the White House’s top lawyer feared Mr. Trump’s conduct could lead to criminal charges — were largely new to them and grabbed their attention.

Weissmann and Strzok both complain specifically about this point. Weissman writes, “Department prosecutors were reportedly surprised by the testimony of Ms. Hutchinson. That is not a sign of a robust investigation into the facts. The department has more tools than Congress does to learn the truth. It could have interviewed Ms. Hutchinson long ago, as well as many others whose evidence is relevant[.]” Weissmann further writes that the department normally tries to stay ahead of Congress during concurrent investigations.

But it’s actually not unheard of for Congress to get ahead of criminal investigators in such high-stakes matters. During Watergate, remember, President Nixon’s taping system was revealed by witness Alexander Butterfield in testimony before the Senate Select Committee, not in any interview with Special Prosecutor Archibald Cox.

When one investigation is asking top-down questions about political accountability and another investigation is asking bottom-up questions about crimes, it is reasonable to expect the investigations to focus on different people and to ask those people different questions. That’s a feature, not a bug, of concurrent investigations probing different things. Importantly, nothing prevents the Justice Department from following up with Hutchinson or other congressional witnesses, as it surely will do. And nothing, importantly, prevents the department from changing or expanding its theory of the case as the committee’s hearings, testimony, and report create criminal predicates for additional investigative threads.

Okay, so let’s be honest: The fourth point—that the department has not yet indicted Trump—is where the emotional power of the critics’ case really resides. Here’s how the tectonic logic of the critique works: We all know that Trump is guilty of crimes. We all know that indictment is the right answer. The Justice Department hasn’t yet gotten us to what we all know the answer to be. The investigation is thus defective, either in its energy, in its substantive capability, or in both.

I do not wish to be dismissive of this argument, which I feel in my heart every day. But it is emphatically not the way the criminal justice system works. We don’t get to declare people guilty of crimes and then evaluate the justice apparatus by its ability to validate our preemptive diktats. We certainly don’t get to declare people guilty of crimes and then evaluate the justice apparatus by its speed in validating our preemptive diktats. It will not do to yell “Do your job!” as though the job of the attorney general were to indict those people we have collectively decided should go to prison. “Do your job!” is just one small step removed from “Lock him up!” which is no different at all from “Lock her up!”—even if it feels entirely different and altogether more righteous.

So what, then, is the correct way, and when is the appropriate time, to evaluate the Justice Department’s Jan. 6 investigation? My answer to these questions may irritate a lot of readers.

The right way to evaluate the investigation is one decision at a time. When an indictment comes down, we can evaluate it. When a search warrant goes out, there’s a data point we can evaluate. When the department declines a case, we can criticize or defend or analyze that decision. And we can always evaluate the pattern of prior activity insofar as that pattern tells a story.

The right time to evaluate the investigation is when it’s done. It’s when the Justice Department winds down the probe, starting to remove resources from it rather than pump resources into it. It’s when the statutes of limitations start waning. It’s when the key decisions have been made, not while they are still being teed up. That’s still a long way from now.

The old saw says that justice delayed is justice denied, but the old saw is wrong. Justice being delayed is overwhelmingly normal in complex criminal probes. As the kids say, get used to it.

There’s one other important dimension to this conversation: Decisions about Trump, and many actions involving Trump, will come last. The Justice Department will not treat Trump as a subject of investigation until it has to. It won’t formally evaluate the evidence against the former president until it has evaluated the evidence against Giuliani, Meadows, Eastman, and a lot of other people and has gotten as many of them into a cooperative posture as it can. This prudence will strike a lot of people as overly cautious, as timid, but it’s actually just wise. Why, after all, would the department move against Trump without first making sure it has all of the documents, without seeing if it can get underlings to testify against him, and without making sure those underlings are telling the truth? And how can it do these things without first moving against these underlings and thus maximizing its leverage against those in the inner circle?

The moment the department moves against Trump, it has major litigation on its hands. It also has a major political imbroglio on its hands. It also has to face significant legal questions. Why would it do these things before it is maximally prepared to defend its position?

Here’s a hint: It wouldn’t do them to alleviate your—or my—sense that things are taking too long.

So sit back, take deep breaths, and pour yourself another cup of tea.

We’re going to be here for a while.