Attorney General Merrick Garland receives a briefing each week from senior Justice Department officials on the D.O.J.’s criminal investigation of the January 6, 2021, assault on the U.S. Capitol, the largest in its history. Various cases are discussed, but one question looms over Garland, the department, and American politics: Does enough evidence exist to prosecute former President Donald Trump for his role in the insurrection? For months, members of the House select committee investigating the attack have accused Garland of moving too slowly. The Attorney General, who has declined to publicly comment on the case against Trump, has promised to “follow the facts wherever they lead.”
The extraordinary revelations to the committee, on Tuesday, by the twenty-six-year-old former White House aide Cassidy Hutchinson regarding Trump’s actions and statements on and in the lead-up to January 6th strengthened a potential criminal case against him. “Her testimony moved the needle,” David Laufman, a former senior Justice Department official and federal prosecutor, told me. Evidence that Trump intentionally obstructed an official proceeding—Congress’s certification of Joe Biden’s victory in 2020—is mounting. On Wednesday night, the committee issued a subpoena for Pat Cipollone, the former White House counsel. Hutchinson, in her testimony, said that Cipollone repeatedly warned the President that his actions were illegal. Cipollone, who has declined to testify under oath so far, has the opportunity to become the John Dean of the Trump era: a White House counsel who puts the public airing of a President’s criminal activity above party loyalty.
The feverish and tribal nature of American politics today threatens again to reduce the chances that Trump will be held accountable. Hutchinson’s testimony astonished Justice Department prosecutors as much as it did the viewing public, the Times reported. It also blindsided them. The committee gave no advance warning of Hutchinson’s statements to department prosecutors, who have spent months investigating the assault. The prosecutors don’t have access to videos and transcripts of hours of testimony that Hutchinson has provided to the committee behind closed doors.
A rift appears to be opening between Congress and the D.O.J. Earlier this month, four top Justice Department officials sent a letter to the committee criticizing it for not sharing transcripts from the thousand-plus interviews it has conducted. “The Select Committee’s failure to grant the Department access to these transcripts complicates the Department’s ability to investigate and prosecute those who engaged in criminal conduct,” the letter stated.
The hearings are also creating opportunities for defense lawyers representing Trump loyalists. They have complained to prosecutors that the committee’s practice of releasing limited details of its investigation—often in dramatic, made-for-virality clips—is unfair to their clients. Like the Justice Department, these defense lawyers contend that they, too, should have access to all relevant evidence, including exculpatory material, as occurs in criminal trials. They also argue that the revelations bias jurors against their clients.
The chairman of the select committee, Bennie Thompson, has said that its members’ highest priority is to complete the hearings, which are now expected to last through the summer. He has also said that the committee will not share all its information with the D.O.J., and has complained that some of the requests have been intrusive. “My understanding is they want to have access to our work product,” he said, in May. “And we told them, ‘No, we’re not giving that to anybody.’ ”
Parallel investigations by Congress and the D.O.J.—and tensions between them—are not new in Washington. The two branches have different processes, and different goals. A congressional investigation is primarily an effort to perform oversight, inform the public, and try to persuade voters to hold Trump accountable at the ballot box. Jamie Raskin, a member of the committee, told me, several months ago, “We need to win this struggle politically.” The committee has generally earned praise for redefining how landmark hearings can be conducted on Capitol Hill, by replacing drawn-out speeches with tightly scripted presentations. Supporters of the committee have said that a clear narrative is needed to overcome Trump’s rampant lying and willingness to spread disinformation to confuse voters.
Justice Department prosecutors, who enforce federal law, are more constrained. They are required to keep their investigations secret, to avoid defaming individuals who may not ultimately be charged with crimes. They must assess and share all potentially exculpatory evidence with defense lawyers before a trial. And they must convince every member of a jury that the accused committed a crime beyond a reasonable doubt. If Trump were to be tried and acquitted, it would boost him politically—another “deep state” plot foiled. And, even if he were convicted, legal experts say that it would not bar him from running for President.
Both investigations have arguably made errors in approach. The House committee’s presentations often convey to the public that securing a criminal conviction of Trump would be simple. (He has survived two impeachments, a special-counsel investigation, and myriad congressional inquiries.) The D.O.J. probe initially focussed on hundreds of low-level offenders, and Garland appears to have shied away from immediately investigating Trump, as part of an effort to project impartiality.
Laufman, the former federal prosecutor, who has also worked as a congressional investigator and defense lawyer, called for patience, despite the stakes. “I understand the desire of people to hold Trump criminally responsible for his conduct with respect to January 6th,” he said. “But it is completely inappropriate for the Justice Department to allow political considerations to impact its decision with whether or not to charge someone with a crime. They have to apply the same standards and ethos to how to proceed with this case as they would with any prosecution, understanding that the national security of the United States hangs in the balance.”
Stephen Gillers, a law professor at New York University, also called for patience. “The Attorney General had said he will follow the evidence,” Gillers told me. “I believe him, and I believe there will be an indictment.” The refusal by Pat Cipollone and other former White House officials to testify may yet protect Trump. But the political reality and the evidence are both increasingly clear. In an unprecedented moment in American history, a President who conducted a failed coup appears intent on returning to power by any means necessary. If there was ever a time for coöperation, trust, and patience among Trump opponents, regardless of position or party, it is now. ♦
