By Barbara McQuade / Special To The Washington Post
Federal prosecutors are trained to tune out the noise of public outcry and focus on the facts and the law when they make decisions about whether to charge someone. But in the case of the Jan. 6 attack on the U.S. Capitol last year, the sound is deafening. Is Attorney General Merrick Garland listening?
This week, the volume rose when the House select committee investigating the Jan. 6 attack filed a brief in court laying out evidence that builds a potential criminal case against former president Donald Trump. The brief was filed in a civil dispute with Trump lawyer John Eastman over whether the attorney-client privilege protects certain documents the committee has subpoenaed. The committee argued that what is known as the crime-fraud exception to the privilege applies to the documents because evidence supports a “good-faith belief” that crimes “may” have been committed; namely, obstruction of an official proceeding and conspiracy to defraud the United States.
The brief lays out evidence the committee has gathered from 550 witnesses over the past six months. The pieces begin to form a picture: Trump pressured Mike Pence to abuse his powers as vice president to obstruct the transfer of presidential power while knowing that claims of election fraud were false. The brief goes on to list the many ways Trump knew the claims were false; he was told so by his own campaign team, the cybersecurity director at the Department of Homeland Security, his own attorney general and his successors, the Georgia secretary of state and 60 judges who rejected his claims in court, to name just a few. In a decision suspending the law license of Trump lawyer Rudy Giuliani, one judge noted that there was not a “scintilla” of evidence of fraud. From the complete absence of such evidence, and repeated statements from trusted sources, at some point it becomes reasonable to infer that Trump knew his claims were false.
The committee’s work seems practically gift-wrapped for Garland: Here’s what you need to hold the former president of the United States accountable for his crimes. You’re welcome. It’s not that simple, however. Garland’s job is harder than the committee’s. If you come at the king, as the saying goes, you best not miss. Is this the assurance Garland needs that he won’t miss?
The committee’s mission is legislative: to find the facts and identify gaps in the law that should be filled to prevent the events of Jan. 6 from ever occurring again. Garland and his Justice Department prosecutors, by contrast, assess the facts to decide whether to file criminal charges. And it’s a decision that requires more than just a good-faith belief that crimes may have been committed. Before charges may be filed, Justice Department policy requires evidence from which it is probable that a conviction can be obtained and sustained.
Even before a charging decision can be made, however, an investigation must be initiated. To do that, the department requires only “predication,” an allegation, report or facts indicating possible criminal activity. Many have wondered out loud whether Garland has begun such an investigation into Trump’s role in the events of Jan. 6. They suggest that had he done so, news would certainly have leaked, and yet there has not been so much as a whisper. I nonetheless believe that yes, the Justice Department must be investigating.
There have been some hints. On Jan. 5 of this year, Garland spoke about progress on Jan. 6, 2021 cases as the anniversary of the attack approached. In his remarks, Garland promised to hold accountable “all January 6th perpetrators, at any level, accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” These words are broad enough to encompass Trump and others who may have planned to obstruct the election certification by fraudulent means.
Garland also explained that day the way Justice Department makes complex cases, resolving “more straightforward cases first because they lay an evidentiary foundation for more complex cases.” To date, more than 700 defendants have been charged, mostly with lower-level offenses such as trespassing and property damage, though some have been charged with more serious offenses, like assaulting police officers and obstructing an official proceeding.
Shortly after Garland delivered those remarks, the department announced the indictment of 11 defendants for seditious conspiracy for attempting to use force to obstruct the lawful transfer of presidential power, the most serious charges to date. On Wednesday, one of those defendants, Joshua James, entered a guilty plea and agreed to cooperate, including by testifying before a grand jury. Prosecutors do not offer cooperation credit before they know that a defendant has information that is valuable in the prosecution of others. According to court records, James provided security to Trump associate Roger Stone during Trump’s rally on Jan 6, an intriguing fact suggesting that he may have information to implicate Stone or others in Trump’s inner circle. Is this what Garland means when he says DOJ resolves more straightforward cases to build to more complex ones?
There is one other thing Garland said on Jan. 5 that calms my concerns about whether DOJ is investigating despite its silence. The department’s normal policy is to neither confirm nor deny the existence of an investigation. This policy is designed to protect the integrity of the investigation and the reputation of the target. Former FBI Director James Comey came under fire for violating this policy in 2016 when he openly discussed the decision to investigate Hillary Clinton over the use of a private email server. On Jan. 5, Garland said that the best way to ensure DOJ’s independence, integrity and fairness “is to have a set of norms to govern our work.” And — here is the money line — “we adhere to those norms even when, and especially when, the circumstances we face are not normal.” So if DOJ is investigating Trump, the last thing it would do is say so.
It’s true that good reasons counsel against charging a former president. First, the inevitable claims of partisan politics alone would be harmful to the public trust in the Department of Justice, the restoration of which is Garland’s primary mission. Second, investigating a former president for crimes committed while in office sets a dangerous precedent, usually seen only in authoritarian regimes. One could imagine a future President Trump charging Joe Biden or even Hillary Clinton for fabricated criminal offenses. Third, there is the litigation risk of losing the case; is it possible to find a jury of 12 people who could agree unanimously beyond a reasonable doubt to convict Trump of any crime, or, as he once famously said, could he “stand in the middle of Fifth Avenue and shoot somebody” without repercussion?
But equally good reasons — maybe even better ones — argue for criminal charges that would advance a substantial federal interest in protecting the integrity of American elections. In a democracy, there is no right more sacred than the right to vote. Trump’s constant refrain about electoral fraud alone has caused harm to public confidence in our elections. A candidate with a slightly more sophisticated plan and a more effective disinformation campaign could succeed next time in overturning the will of the people.
Garland will not make any investigative decisions based on the public outcry. I am equally confident that he is not ignoring what we all are beginning to see.
Barbara McQuade is a law professor at the University of Michigan Law School and the former U.S. attorney for the Eastern District of Michigan.
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