It’s Official: Trump is a Target of the Justice Department Probe

The January 6th investigation is going to the top

Merrick Garland, Attorney General of the United States, is famous for four things.

Garland has a passion for the law. His grandparents fled from Russia to America in the early 20th century, fleeing antisemitic pogroms. At his confirmation hearings for Attorney General, when he was asked why he wanted the job, he replied, “I come from a family where my grandparents fled antisemitism and persecution.” Then, after several seconds of composing himself from an obviously emotional reaction, he continued:

The country took us in and protected us, and I feel an obligation to the country to pay back — this is the highest, best use of my own set of skills to pay back. I want very much to be the kind of an attorney general that you are saying I could become. — Merrick Garland (2021)

For him, the rule of law is personal.

Garland attended Harvard Law School, where he was the articles editor for the Harvard Law Review. In that role, Garland assigned himself to edit a submission by U.S. Supreme Court Justice William Brennan. These conversations later contributed to his winning a clerkship with the Justice. He worked as a judicial law clerk and spent two years before becoming a special assistant to U.S. Attorney General Benjamin Civiletti. He entered private practice, and lectured at the Harvard Law School, but felt he had a duty to return to public service.

Garland is meticulous. In 1989 he became an Assistant United States Attorney, representing the government in high-profile criminal cases, including the trial of Washington, D.C. mayor Marion Barry for cocaine possession. In the Clinton administration he became deputy assistant attorney general in the Criminal Division of the United States Department of Justice, and principal associate deputy attorney general, where he supervised high-profile domestic-terrorism cases, including the Oklahoma City bombing, Ted (“Unabomber”) Kaczynski, and the Atlanta Olympics bombings. He insisted on being sent to Oklahoma City to examine the crime scene and oversee the investigation in preparation for the prosecution. He wanted to lead the trial team, but could not because he was needed in D.C.. Instead, he helped pick the team and supervised it from Washington, where he was involved in all major decisions, including the choice to seek the death penalty for McVeigh and Nichols.

He has a reputation for gathering all the available facts, applying the law, and presenting his findings to the jury in such a way that he is assured of a conviction. Federal prosecutors, as a rule, only lose two percent of the cases they bring to trial. In part, that is because they will not bring a case to the trial stage unless they know they will win. They assemble such an airtight case that either a defendant will confess and attempt to plea bargain, or the accused will go to trial and lose. Among Federal prosecutors, Garland has a reputation for being the best. That’s why he has been assigned so many high profile cases. He works slowly, carefully, inexorably to a conviction.

Garland is brilliant. He was nominated by President Clinton to the U.S. Court of Appeals for the District of Columbia, a position of special importance due to its involvement in cases involving the Federal government. There he developed a reputation as a judge that Nina Totenberg and Carrie Johnson of NPR described as “a moderate liberal, with a definite pro-prosecution bent in criminal cases.” He stuck to precedent when it wass available. He applied the spirit of prior decisions when a strict precedent wasn’t unavailable.

Garland is quiet. As a prosecutor, he developed a reputation for building teams that never leak. He never tips his hand. He knows that keeping his cards close to his vest gives the prosecutor an inestimable advantage in complex cases, especially in cases of conspiracy and organized crime, where progress is often achieved by playing one defendant against another. He doesn’t care about politics or his personal image. He never moves because of pressure from the public or from public officials. And if he is moving, he’s unlikely to announce it.

This makes it all the more remarkable that the Justice Department, under Merrick Garland, has now confirmed that Donald Trump is being investigated in relation to his actions leading up to and during the January 6th insurrection at the U.S. Capitol, as well as his role in the attempts to overturn the results of the 2020 election.

The semi-public announcement

Confirmation of this news comes from several directions. The Washington Post has confirmed with two anonymous sources that witnesses before a Federal grand jury (including top aides to Vice President Mike Pence, and the Vice President’s Chief of Staff) have testified about conversations with Trump, his lawyers, and others in his inner circle who worked to substitute Trump allies for certified electors in some states Joe Biden won. Some questions have focused on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers, including Rudy Guiliani and John Eastman.

In addition, Justice Department investigators in April, long before the televised hearings of the January 6th Committee, had already received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows. In recent weeks the visible pace of the work has increased, with a fresh round of subpoenas, search warrants and interviews. Examining Trump’s conversations with aides concerning the 2020 election marks a major escalation in the Justice Department’s investigation. The leaks came hours after Attorney General Merrick Garland declined to rule out prosecuting Trump. He assured an interviewer for NBC that prosecutors would “pursue justice without fear or favor” anyone involved in efforts “to interfere with the lawful transfer of power from one administration to another.”

Some reports have has emphasized that Trump is not an official “target” of investigation, but that is a distinction without practical meaning. His actions are the target. It’s like saying Al Capone wasn’t an official target of the Untouchables — only his actions as they related to racketeering and tax evasion. The crimes are the target of the investigation, and Trump is now included in the list of people involved. The prosecutors are asking hours of detailed questions about the meetings Trump led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election; and whatever instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states.

Why now?

Of course, the sources behind these reports are “anonymous”. But given Garland’s reputation for secrecy, that means the confirmation is coming from one of three places:

• the people who have been asked the questions,
• the people who have been asking the questions, or
• the Attorney General himself.

The people asking the questions would never leak without the express permission of the Attorney General. The people asked the questions have refused to make a public comment on their testimony, outside of confirming that it has taken place. Federal Rule of Criminal Procedure 6(e) prohibits most persons present during grand jury proceedings from disclosing what transpired inside the grand jury room. And while the proscription does not apply to witnesses, a section of the U.S. Attorneys’ Manual subjects certain categories of witnesses to secrecy obligations. At least one district court has actually imposed an obligation of secrecy on grand jury witnesses. By shrouding grand juries in total secrecy, targets are often unable to learn the direction of the investigation. This is especially important in complex cases of organized crime, like the attempt to overturn the results of an election.

This leaves the Attorney General. There is a long tradition of senior officials making statements “off the record” to be attributed to “highly placed sources.” Attorney General Barr was famous for using off the record interviews to slant and spin stories in directions favorable to the president and himself. The timing of these leaks, as the January 6th Committee has presented some of its evidence to the public and Trump has returned to D.C. in what could be described as preparation for an announcement that he will run as a candidate for president in 2024, suggest that it is Garland himself who is sending the message.

Bill Barr, before he left the Trump White House, signed a memo banning criminal investigation of declared candidates for the presidency, unless that investigation was formally authorized by a written order by the Attorney General. Attorney General Garland, who issued an internal statement affirming the Justice Department’s policy of noninterference in American elections (including a mention of Barr’s memo), appears to have decided that it is time to make clear that the desire to avoid an official indictment before the November election should not be taken as an indication an investigation is not under way. Barr’s memo includes an option for the Attorney General to sign an order reauthorizing investigations if a candidate officially announces his candidacy. It is safe to assume that if those documents have not already been signed, they are in a file, awaiting only a date and a signature, to be issued internally the moment Trump announces he is a candidate.

Trump is now a target, and if he thinks he can avoid scrutiny by declaring his candidacy, he’s wrong.

Where this goes from here

Garland has been working as he always works: quietly, methodically, building a case from the bottom by convicting accomplices and encouraging witnesses to flip on their bosses. So far, more than 850 people across all 50 states have been arrested in connection with the attack on the Capitol on January 6, 2021. Many have been convicted, with penalties including substantial prison time. Others have pled guilty and turned to present evidence against other subjects of the investigation. The House Jan. 6 Committee has outlined the actions that led up to that day and the actions Trump took, and did not take, as the riots took place.

As the investigations proceed, two tracks lead to Trump. The first centers on seditious conspiracy and conspiracy to obstruct a government proceeding. These are the types of charges already filed against individuals who stormed the Capitol on January 6th, as well as two leaders of far-right groups, Stewart Rhodes and Henry “Enrique” Tarrio, who did not breach the Capitol but were allegedly involved in planning the day’s events. The second involves potential fraud associated with the false-electors scheme.

Trump is now a target. And as Garland has emphasized in his recent public statements, the Justice Department works

without fear or favor. We intend to hold everyone, anyone, who was criminally responsible for the events surrounding January 6th, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable — that’s what we do. We don’t pay any attention to other issues with respect to that. — Merrick Garland (2021)