by Harry Litman
The report Tuesday from The Washington Post that the Department of Justice’s insurrection investigation is focusing on the conduct of former President Donald Trump was important and reassuring, but it was not particularly surprising.
Attorney General Merrick Garland had repeatedly indicated that Trump would not get a pass. He reiterated the principle, with a hint of exasperation, in his news conference just last Wednesday. One reporter asked: “No person is above the law in this country — even a former president?” Garland replied: “Maybe I’ll say that again, no person is above the law in this country — I can’t say it more clearly than that.”
Garland is not immune from bureaucrat-speak or even platitudes, but he does not lie. And there was no mistaking the import of his words, notwithstanding the continued anxiety of those who despair that he is not moving fast enough.
Moreover, Garland was only making plain what experienced department hands, including me, have been saying for more than a year: It is inconceivable that the department would plow through investigations and indictments of hundreds of on-the-ground offenders at the Jan. 6 insurrection — it has so far brought charges against some 840 rioters — and leave untouched the possible ringleaders. Justice’s credo is to forge ahead — perhaps slowly, it’s true — to the top of the ladder of responsibility.
And for a very long time, arguably since Jan. 6 itself, it’s been clear that an investigation of the potential criminal responsibility of the former president would be required. From the first, Trump looked to be knee deep in the efforts to prevent the peaceful transfer of power; now, 19 months later, he looks to be up to his eyebrows, and the tide continues to rise.
So why is it only now that the crackerjack reporters at The Washington Post could confirm a focus on Trump?
The main reason is that only recently has the investigation proceeded to grand jury testimony from the political circle around Trump, in particular the former chief of staff and counsel to Vice President Mike Pence. Information about grand jury questioning is most likely going to come from witnesses, not department attorneys, who are subject to severe discipline for revealing grand jury information.
The grand jury’s focus on Pence aides, as well as other subpoenas the department has issued, suggests that of the interlocking schemes to derail the election that the Jan. 6 committee has identified, the department is methodically concentrating first on the one to install alternative electors. The other area of current activity looks to be the coup effort spearheaded in the department itself by mid-level functionary Jeffrey Clark.
So what happens next? The Post report, unsurprisingly, raises as many questions as it answers. Garland has emphasized the complicated aspects of the department’s work toward executive branch indictments, beginning with the possibility that potential charges against Trump could be bogged down in claims about protected First Amendment political activity.
But to cut to the chase, I think once the evidence is in — including the great wealth of revelations from the Jan. 6 committee — the standard threshold for bringing serious charges against Trump will be more than met. That is, the department will be able to safely conclude that Trump’s conduct in fact constitutes a federal crime or crimes, and that a conviction is probable.
Which federal crimes? That’s a whole other column, but the publicly available evidence is sufficient to show Trump committed obstruction as well as fraud against the United States in his schemes to delay the certification vote. The important open question is whether the department will be able to charge Trump with seditious conspiracy, an inordinately serious charge to levy against a former president but the one that I believe best captures his heinous conduct.
And then the ultimate question: Will the Justice Department take the historic step of indicting a former president?
As Lester Holt put it in his interview with Garland on Tuesday, “The indictment of a former president, and perhaps a candidate for president, would arguably tear the country apart. … Do you have to think about things like that?”
Garland’s response suggested the department could put such considerations to the side, treating Trump like any other defendant, but it is difficult to see how the government as whole could do that, or even if it should. It may fall to President Joe Biden, in consultation with Garland, to consider whether the prosecution is in the best interests of the country.
The one guiding precedent we have — the pardon of Richard Nixon for his Watergate actions — suggests that in these extraordinary circumstances justice cannot be blind to the broader public well-being.
I think two things are certain. First, Garland hasn’t yet made up his mind and won’t until all the evidence is in and his team has weighed in — and that will take time, well more than the immediate indictments that his critics are screaming for. And second, his decision will be driven entirely by his notion of what is the right thing to do.
That may be insufficient assurance for the thousands of observers, myself among them, who have come to the conclusion that the rule of law requires a federal prosecution of the former president. But it’s the assurance we were thrilled to be getting when Garland took office, and it’s a big start toward a just outcome for the nation.
