On his first anniversary as attorney general, Merrick Garland said he’s committed to unraveling the conspiracy behind the storming of the U.S. Capitol, in what he calls “the most urgent investigation in the history of the Justice Department.”
Members of the House committee investigating the Jan. 6 riot have asserted former President Donald Trump could be charged with conspiracy and obstruction for his actions. But Democrats in Congress and even some of Garland’s friends have worried he’ll shy away from the political firestorm that would result from charging a former commander-in-chief with a crime.
“We are not avoiding cases that are political or cases that are controversial or sensitive,” the attorney general said in an exclusive interview with NPR. “What we are avoiding is making decisions on a political basis, on a partisan basis.”
This week, prosecutors won their first convictions in federal court in a Jan. 6 case against former Texas oil worker Guy Reffitt. [Texas Man Convicted in First Jan. 6 Trial.] That followed a guilty plea to seditious conspiracy by an Alabama man affiliated with the far-right Oath Keepers militia. [Alabama man affiliated with far-right militia group Oath Keepers pleads guilty to seditious conspiracy in Jan. 6 riot.]
Jennifer Rubin explains, Guilty verdict in first Capitol riot trial could spell trouble for Trump:
In its first Jan. 6 jury trial, the Justice Department prevailed on one of the legal theories best designed to eventually snare defeated former president Donald Trump and his top cronies: obstruction of Congress’s electoral vote tabulation. Meanwhile, the the Justice Department announced a new indictment and arrest relying on that same theory.
Henry “Enrique” Tarrio, the former national chairman of the Proud Boys, was arrested today following his indictment on conspiracy and other charges related to the breach of the U.S. Capitol on Jan. 6, 2021, which disrupted a joint session of the U.S. Congress that was in the process of ascertaining and counting the electoral votes related to the presidential election.
Others named in the superseding indictment include Ethan Nordean, 31, of Auburn, Washington; Joseph Biggs, 38, of Ormond Beach, Florida; Zachary Rehl, 36, of Philadelphia; Charles Donohoe, 34, of Kernersville, North Carolina; and Dominic Pezzola, 44, of Rochester, New York. All previously were detained. They earlier pleaded not guilty to charges.
Tarrio was indicted on one count of each conspiracy to obstruct an official proceeding and obstruction of an official proceeding, as well as two counts each of assaulting, resisting, or impeding certain officers and destruction of government property.
If Trump is going to be indicted, this [obstruction] charge is one of those most likely to be included.
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“Tarrio and his co-defendants, all of whom were leaders or members of the Ministry of Self Defense,” a Proud Boys subgroup, “conspired to corruptly obstruct, influence and impede an official proceeding, the certification of the electoral college vote,” the Justice Department statement said. It added, “Although Tarrio is not accused of physically taking part in the breach of the Capitol, the indictment alleges that he led the advance planning and remained in contact with other members of the Proud Boys during their breach of the Capitol.”
Trump should be forewarned: He and his co-conspirators not physically present might find themselves looking at a similar charge.
Unlike Tarrio, Trump was physically present at the Stop the Steal rally ahead of the Capitol breach, and exhorted [incited] the crowd to march to the Capitol. Two legal theories — obstruction of an official proceeding and seditious conspiracy (which has been filed against other defendants) — rest on the argument that Trump wrongfully set out to stop the vote tabulation that would confirm President Biden’s election. In the case of seditious conspiracy, prosecutors would need to show that Trump knew his actions would result in the violent insurrection.
Stumbling blocks to prosecuting Trump remain. For an obstruction charge, prosecutors would need to show he intended to corruptly interfere with Congress (e.g., he knew there was no basis for blocking the vote). Evidence that at least 11 officials (including then-Attorney General William P. Barr) told Trump he lost does not rule out the possibility that he simply refused to believe them. (Put differently, he was so loony he couldn’t tell fact from his own fiction.)
Ex-president ‘responsible’ for Jan 6 says Bill Barr: In an interview with NBC News anchor Lester Holt, Mr. Barr said: “I do think he was responsible in the broad sense of that word.” “It appears that part of the plan was to send this group up to the Hill,” with the former president’s goal to “intimidate Congress”.
For seditious conspiracy, prosecutors would most likely need to show that Trump knew violence would occur — or, when it broke out, that he aided the insurrectionists. Evidence for that might come from communications between Trump associates or from participants in conversations with Trump.
In sum, the Justice Department is establishing the legal theories that could be used to follow the chain up to and including Trump. This is standard practice in mob trials. But it still leaves knotty questions regarding intent.
However, the notion that Attorney General Merrick Garland is slow-walking charges against Trump or has decided not to go after him is inconsistent with the department’s actions to date. Garland might just be warming up to take on the man whose refusal to accept defeat resulted in the most lethal armed insurrection since the Civil War.
“We begin with the cases that are right in front of us with the overt actions and then we build from there,” Garland said. “And that is a process that we will continue to build until we hold everyone accountable who committed criminal acts with respect to January 6.”
I would counsel you, General, that time is of the essence. You do not have the time to waste on “following the chain up to and including Trump” by convicting lesser co-conspirators. Sometimes, all the evidence you need to indict the mob boss at the top is readily available to you. It increasingly appears that the January 6 Committee is doing the aggressive investigation that the DOJ should have been doing for the past year. If the DOJ is actually doing this investigation, there are no public facing signs of it.
Extraordinary resources devoted to the Jan. 6 probe
“Every FBI office, almost every U.S. attorney’s office in the country is working on this matter. We’ve issued thousands of subpoenas, seized and examined thousands of electronic devices, examined terabytes of data, thousands of hours of videos. People are working every day, 24-7, and are fully aware of how important this is. This had to do with the interference with the peaceful transfer of power from one administration to another. And it doesn’t get more important than that.”
Garland is talking about the low hanging fruit of the MAGA/QAnon yahoos incited by Donald Trump to storm the Capitol on Jnauary 6, 2021. He has said nothing in this interview to reassure the public that Donald Trump and his co-conspirator Coup Plotters at the top are actually being investigated. Americans want the ringleaders brought to justice, not just these idiots they incited to violence.
Merrick Garland’s law professor at Harvard, Laurence Tribe, with Dennis Aftergut,a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy write, Attorney General Merrick Garland should appoint a special counsel to investigate Trump:
The time has come for Attorney General Merrick Garland to appoint a special counsel to investigate Donald Trump. That step offers the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges.
Several recent developments have brought us to this moment. On March 2, the House select committee investigating the Capitol siege alleged in a federal court filing that it had amassed evidence that Trump illegally schemed to stop the lawful transfer of power to Joe Biden.
The next day, we learned that Oath Keepers member Joshua James was cooperating with prosecutors as part of a guilty plea for obstructing an official proceeding of Congress and for seditious conspiracy culminating in the Jan. 6 attack.
And last month, a federal district court ruled that two Capitol police officers and 11 members of Congress had alleged facts in a civil suit against Trump that, if proven, would support holding him civilly liable for inciting the Jan. 6 siege.
These events raise public expectations and heighten the political pressure on the Justice Department. On one side are those counseling Garland to refrain from acting against Trump lest the attorney general be accused of engaging in a partisan vendetta. On the other are those, including us, who believe that Trump’s alleged role in a conspiracy intended to interfere with congressional duty is so unprecedented that ordinarily close legal questions bend in favor of taking action to protect the rule of law.
The Justice Department’s special counsel regulations offer a way to resolve these tensions. They give the attorney general authority to appoint an esteemed lawyer to investigate a matter involving “extraordinary circumstances” under which it is “in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”
The Justice Department adopted the current regulations in 1999, in the wake of the Whitewater investigation into then-President Bill Clinton and after the independent counsel statute had expired.
The regulations state that only “a lawyer with a reputation for integrityand impartial decisionmaking, and with appropriate experience” may be appointed. He or she must “be selected from outside the United States Government.” Appointing such a person would serve the public interest by providing a crucial layer of independence and nonpartisanship in the resulting investigation.
Garland should name a strong attorney of unassailable experience and impeccable reputation, modeling Leon Jaworski, who was appointed in 1973 to investigate Watergate after President Richard Nixon fired independent prosecutor Archibald Cox.
The regulations are designed, as a Congressional Research Service report explained, to strike a balance between “the competing goals of independence and accountability.
On the matter of independence, the attorney general may reject a special counsel’s proposed recommendations for specific actions only when they are “inappropriate or unwarranted under established Departmental practices” and has to explain that decision to Congress.
Importantly, the president can’t fire a special counsel. The attorney general may take that step, but only for misconduct, conflict of interest or other “good cause.”
On the accountability side, the special counsel is subject to all Justice Department rules, which expressly require all attorneys, including any special counsel, to follow department guidelines about when to bring prosecutions and notify the attorney general of “major developments in significant investigations and litigation,” such as the filing of criminal charges.
Far from implying any expectation about the investigation’s result, appointing a special counsel helps ensure an objective outcome.
Some might object that appointing a special counsel would delay the process. But there are past special counsels who have moved expeditiously, and this one can as well.
Another objection is that a special counsel might range too broadly. The regulations, however, give the attorney general the responsibility to limit a special counsel’s jurisdiction, providing a “specific factual statement of the matter to be investigated.”
Finally, some may say that this is too important to give to anyone other than the attorney general. But even those with faith in Garland’s independence from President Biden must recognize the inevitable charges of partisanship if an official appointed directly by the president investigates and decides whether to prosecute a former and potentially future rival of Biden’s for the presidency.
A special counsel is warranted. Indeed, it is imperative.
With a special counsel, the American public would be reassured that Donald Trump and his co-conspirator Coup Plotters are actually being investigated.