This week, at least some of the media narrative about Attorney General Merrick Garland went from “Garland is doing nothing because he’s too timid,” to “Garland is doing it all wrong,” to “maybe Garland knows what he’s doing.”
(I assume readers are familiar with my DOJ Investigation FAQs .
June 2022 (and earlier): Commentary about Garland often gave fuel to the theory that Garland is a “timid institutionalist.”
Elie Honig is a CNN legal analyst:
This tweet below is from constitutional law professor Larry Tribe (Tribe is responding to actor Rob Reiner, who, incidentally, has no real-world expertise in criminal law or criminal investigations):
New evidence emerged this week that Trump (not just members of his inner circle) is being investigated.
On Tuesday, July 6, The Washington Post dropped a bombshell:
We learn in this article that, for the first time, there is evidence that Donald Trump himself (not just members of his inner circle) is the subject of a DOJ investigation:
Prosecutors who are questioning witnesses before a grand jury — including two top aides to Vice President Mike Pence — have asked in recent days about conversations with Trump, his lawyers, and others in his inner circle who sought to substitute Trump allies for certified electors from some states Joe Biden won. . .
The news report goes on to mention “hours of detailed questions”:
The prosecutors have asked hours of detailed questions about meetings Trump led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election; and what instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states, the people said. Some of the questions focused directly on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers,including John Eastman and Rudy Giuliani, these people said.
Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter. (emphasis added)
As you can see in the tweet below, this former prosecutor (and lots of other people) missed the significance of “in April” in the above sentence:
The Washington Post, however, got the chronology right:
Keep in mind, as well, that a grand jury hearing evidence about Trump’s involvement in the fake elector plot didn’t spring from nowhere. Before a prosecutor presents evidence to a grand jury, a lot of legwork has to happen, as explained here by George Conway and Elizabeth de la Vega. Both are lawyers, and de la Vega has a few decades of experience conducting criminal investigations:
The grand jury happens late in the course of an investigation. Generally what happens is this: An arrest warrant is based on an indictment or a complaint filed with the U.S. District Court. A federal indictment must come from a grand jury. I learned this week that there are people out there who think that the process begins with an arrest:
The first misunderstanding in the above comment was that Garland is “letting it come out” this week. The information came from the witnesses who appeared before the grand jury. We know that because it is actually a federal crime for the DOJ to disclose information about grand jury proceedings. (Keep in mind that grand jury proceedings can take a long time.)
If people indeed think that an arrest comes first, that would explain why people are still showing me this meme on Twitter:
People also cling to the narrative that Garland is reacting to public pressure that came from the Jan. 6 televised hearings:
Yeah, actually, that’s what I’m saying. If you look at the progression of the investigation over the past year, it seems to me there is no other conclusion to draw.
As Justin Parkhurst said (with humor):
Lester Holt interviewed Garland on NBC
The same day The Washington Post broke the story that a grand jury is hearing testimony about Trump, Garland gave an interview to Lester Holt. Mostly Garland said the same things he’s been saying since 2021, but he answered a few direct questions with new answers.
Asked if he learned anything new from the Jan. 6 hearings, Garland said the DOJ and the committee have both been engaging in wide-ranging investigations so:
(Recall that the New York Times article reporting that the DOJ was “jolted” into action by new information from the Jan. 6 televised hearings, also reported that a DOJ spokesperson said that the new information hadn’t altered how the DOJ was proceeding with the investigation.) Garland confirmed that the DOJ is proceeding the same way it has from the beginning. Thus Garland’s response (no surprise) confirmed what the DOJ spokesperson said: There was nothing that “jolted” the DOJ into changing course.
Holt asked Garland about people criticizing the way the DOJ was conducting the investigation. Garland said:
The reason there is this speculation and uncertainty is that it’s a fundamental tenet of what we do as prosecutors and investigators is to do it outside of the public eye.”
Because speculation means “forming a theory or conjecture without firm evidence,” Garland, by referring to the criticism as “speculation,” dismissed it as not being based on fact. He (tactfully) explained that his critics don’t have the facts, so all they can really do is speculate. (Garland knows the facts, but he’s not telling.)
Holt also asked Garland whether criminal referrals from the committee would matter to the DOJ. Very tactfully, Garland said no. He said whether the committee makes referrals is up to the committee, but referrals have no legal significance.
Otherwise, Garland basically said the same things he’s been saying.
Asked how he feels about the criticism he’s getting that the DOJ isn’t moving quickly enough, he said the DOJ has been “urgently” pursuing these cases from the beginning.
He repeated that he doesn’t care if someone is a former president or candidate for office, he intends to hold everyone accountable who is criminally responsible for the events of Jan. 6.
More evidence of progress in the DOJ investigation
On July 28, CNN reported that:
Former DOJ staffer Ken Klukowski, who worked with Jeffrey Clark, is now cooperating in the DOJ Jan 6 investigation, including allowing a search of his electronic records. His lawyer confirmed: “We’ve been fully cooperating.”
Jeffrey Clark was the DOJ official who wanted to help Trump overturn the election. Recall that federal authorities had already seized Clark’s phone. Now they have one of his colleagues cooperating. (This is not good for Clark.)
CNN also reported that the DOJ is taking care with how they ask witnesses questions about Trump to make sure they avoid errors that can later be exploited by the defense:
DOJ prosecutors told witnesses Short and Jacob that they will set aside a certain category of questions now and we’ll get back to them on those after we take a few steps.
The questions at issue had to do with “their direct interactions with Trump,” and concerned the issue of executive privilege. In other words, the DOJ knows Trump will raise the issue of executive privilege and they are seeking to remove legal hurdles first. This is how the DOJ avoids the kinds of errors that can later be exploited by the defense.
The article goes on to say:
As a result, the Garland narrative is shifting
This New York Times article appeared on July 28, after explosive news that the DOJ investigation is moving closer to Trump:
According to the article, Garland has “taken a more methodical approach, carefully climbing up the chain of personnel. . . ” This is a shift from “Garland is too timid.”
A well-known lawyer who has been irritated with Garland for (among other things) refusing to announce that Trump is being investigated, tweeted this:
Even Rep. Adam Schiff, who has been extremely critical of the DOJ (see this post) appeared on MSNBC and said, “I think the attorney general said all the right things, and I perceived a difference between what he’d been saying earlier about focusing on all those involved in the attack and now talking more broadly.”
In fact, Schiff mischaracterized what Garland said earlier. On Jan. 5, Garland said, “We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases . . . 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.”
Schiff’s mischaracterization was intellectually dishonest. Either Schiff wasn’t paying attention to what Garland was saying earlier, or he went on television and deliberately twisted Garland’s words. Either way, he was backpedaling.
A few days after Garland’s speech, NBC News National Security Analyst Frank Figliuzzi (who, to be fair, was never one of the Garland-slammers) wrote this:
From his piece:
The pressure on Garland to move faster, say something, arrest somebody, anybody, close to Trump intensified when some members of the House committee investigating the Jan. 6 assault on the U.S. Capitol began expressing their own frustration with him. But Garland wasn’t going to cave to public pressure. That’s not how a healthy Justice Department is supposed to do things. The department is supposed to follow the facts and the law – not the op-ed pages.
I fully expect the Garland-bashing to continue. I expect people to continue asking me why the DOJ is “doing nothing,” and why Garland is “refusing to hold people accountable for the insurrection.”
This does not mean that everyone out there has shifted. This is from a large account (not a lawyer):
But if the DOJ continues to move closer to Trump (and I have no reason to believe at this point that it won’t), we can expect less “Garland asleep on the job” and more praise of Garland’s methodical approach.
On the other hand, if we have a few weeks of silence from the DOJ, I expect that Garland-bashing will start up again in full force.
Personal note: A few weeks ago, I had private conversations with two prominent and well-respected legal experts who told me that my conclusion that there was no evidence that Garland was screwing up was incorrect. Both said Garland should be doing something different. I was left rattled, with my confidence shaken. This week both have shifted their opinions. Both of them backtracked.
The problem is how people get their information. The facts are there. The facts are being reported. But too often the droplets of facts get drowned out by a firehose of speculation and opinion, mixed with bad information.
We need more focus on facts.
Meanwhile, the political winds are shifting against Trump.
In January of 2021, immediately after the Jan. 6 insurrection, prominent Republicans were blaming Trump for the attack. Then, something changed. Within days (and weeks) the Republican Party once again closed ranks and entirely shielded Trump. This was why the Republican-led Senate refused to call witnesses in Trump’s second impeachment, and they acquitted him.
After the last televised Jan. 6 hearing, when the Select Committee detailed Trump’s silence as the insurrection unfolded, something changed again. Check out what the editorial board of the New York Post (previously a pro-Trump newspaper) wrote:
Here are a few excerpts:
As his followers stormed the Capitol, calling for his vice president to be hanged, President Donald Trump sat in his private dining room, watching TV, doing nothing.
For three hours, seven minutes.
And [Trump] was the only person who could stop what was happening. He was the only one the crowd was listening to. It was incitement by silence.
It’s up to the Justice Department to decide if this is a crime. But as a matter of principle, as a matter of character, Trump has proven himself unworthy to be this country’s chief executive again.
That is scorching hot.
The Wall Street Journal, another Murdoch-owned paper that has been among Trump’s most ardent defenders, ran this editorial:
Even Fox appears to be abandoning Trump. From the New York Times:
On July 22, as Mr. Trump was rallying supporters in Arizona and teasing the possibility of running for president in 2024, saying “We may have to do it again,” Fox News chose not to show the event — the same approach it has taken for nearly all of his rallies this year. Instead, the network aired Laura Ingraham’s interview with a possible rival for the 2024 Republican nomination, Gov. Ron DeSantis of Florida. It was the first of two prime-time interviews Fox aired with Mr. DeSantis in the span of five days; he appeared on Tucker Carlson’s show shortly after talking to Ms. Ingraham.
Rick Wilson, a former Republican operator who knows a thing or two about the GOP, said: “The titanic forces inside the gentry GOP, the money crowd, Fox, and the consultant class have set their hearts on DeSantis.”
These dynamics make it easier for insiders to come forward who, until now, may have been frightened into silence. If Trump is no longer the darling of the right-wing and no longer has as much power to hurt people, it’s easier for insiders to summon the courage to come forward and spill everything they know.
Doors have opened, new subpoenas have been issued, and the dam has begun to break.
As I explained in my FAQs, the more insiders who come forward and are willing to testify, the more solid the evidence and the stronger the case.
Question from a reader
Question: When (if ever) does doing nothing become criminal?
(The person was asking whether Trump can be held criminally liable for refusing to call off the violence on Jan. 6.)
Answer: A person can have criminal or legal liability when a person has a legal duty to act.
- A statute requires a person to act in a certain way.
- A contract requires a person to act in a certain way.
- Some special status relationship exists that creates a duty to act in a certain way (i.e. parental responsibilities).
- A voluntary assumption of care creates a duty to act in a certain way.
- The individual created the risk.
So the answer to whether Trump can be held criminally liable for refusing to act on Jan. 6 is yes (sort of) because he created the risk. (There are other crimes that Trump can be charged with of course, some easier to prove, some harder.)
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