Comment: Garland must be methodical, careful; and prompt

By Richard Ben-Veniste / Special to The Washington Post

Let’s take Attorney General Merrick Garland at his word that he is vigorously investigating Donald Trump and the apparent conspiracy that led to the violent coup attempt at the U.S. Capitol 18 months ago.

My guess is that Garland should be able to make the decision on whether there is enough evidence to indict the former president for the crime of conspiracy to defraud the United States and/or related felonies in six months’ time. That decision should be based solely on whether the evidence is sufficient to convince a jury, beyond a reasonable doubt, of Trump’s guilt; not on political considerations.

He will have to be about his work. The Jan. 6 select committee held what might be its last public hearing on Thursday evening. The committee, led by its steadfast chair, Rep. Bennie Thompson, D-Miss., and its implacable vice chair, Rep. Liz Cheney, R-Wyo., has demonstrated a unity of purpose and willingness to put the nation’s interests above personal attention and reward, and produced a factual record that lays the foundational predicate for charging those responsible for organizing the assault on the Capitol.

Understandably, some have called on Garland to produce immediate indictments and prosecutions of individuals. I believe a more patient approach will better serve the interests of justice.

There is some analogy in the timetable to the work of the Senate Watergate Committee some five decades ago. That committee’s investigation provided an evidentiary foundation upon which the Watergate Special Prosecutor’s Office built a series of successful prosecutions of individuals who held the highest positions of power in the Nixon administration. The testimony of Nixon White House counsel John Dean and the revelation of the secret White House taping system by Alexander Butterfield were critical to our ultimate success.

The toolbox of federal prosecutors is better equipped to ferret out testimony and documents from reluctant witnesses than the investigative powers of congressional committees. The special prosecutor successfully subpoenaed the Nixon tapes, while Congress failed to obtain them. Hostile and dissembling witnesses testified against their superiors under relentless pressure from the prosecutors. And it was the special prosecutor who presented evidence of Richard Nixon’s complicity in obstructing the Watergate investigation that convinced the grand jury to vote that he be named as an unindicted co-conspirator.

But employing the prosecutor’s tradecraft takes time. Reluctant witnesses have to be confronted with evidence; culpable parties may be granted immunity to induce cooperation against higher-ups. Challenges to grand jury subpoenas must be litigated in the courts.

And Garland might need to add muscle to his team and draw down on the Justice Department’s ample resources to unravel some of the mysteries of the narrative. The missing Secret Service text messages from Jan. 5 and Jan. 6 may lead to evidence that still more malign forces were at work to impede the lawful transfer of power. Was Vice President Mike Pence prescient in refusing his Secret Service detail’s request that he get into his official limousine after he was hustled out of the Senate chamber moments before the mob reached it? Might they have spirited him away from the Capitol “for his own safety,” thereby accomplishing the interruption of the critical function of reporting the electoral college vote count Trump and his enablers were seeking?

In addition to the attempt to replace the attorney general with a Trump puppet who would announce an official investigation of bogus claims of election fraud, were other rogue elements of the military and law enforcement establishment importuned to intercede to join the plot? Clearly, the threat of invocation of martial law was serious enough to spur the bipartisan warning from all the living former secretaries of defense on Jan. 3 not to involve the military in a dispute over the election.

Meanwhile, Trump continues his obstructive tactics of openly encouraging potential witnesses not to cooperate, and promising “patriots” who have been prosecuted for their activities on Jan. 6 that he will pardon them if he regains the presidency. Nixon’s secret promise of clemency to the burglars was an essential component of the Watergate coverup indictment.

Garland has stated his intention to use the Justice Department’s resources to prosecute wrongdoing “at any level” and defend our democratic institutions from attack and threats of violence. We should take him at his word and allow him to discharge his solemn responsibilities; without fear or favor, and with all deliberate speed.

But he does not have unlimited time. Depending on the results of the November midterm elections, the federal probe of Jan. 6 might soon be a DOJ matter only. Based on its prior recalcitrance, a Congress under Republican control would be unlikely to support such a probe; and could easily undermine it.

We should be encouraged by Garland’s record as a tough prosecutor of domestic terrorists. He ran a masterful investigation and prosecution in the Oklahoma City bombing case earlier in his career. But this case is many times more complicated and consequential than any challenge he has faced in the past. We should expect Garland to be methodical and careful.

But he hasn’t got forever.

Richard Ben-Veniste was chief of the Watergate Task Force of the Watergate Special Prosecutor’s Office. He also served as a member of the bipartisan 9/11 Commission.