Opinion: Will Trump Face Justice? Don’t Give Up on Merrick Garland Just Yet

On Thursday evening, July 21, the House special committee presented powerful evidence that President Donald Trump had spent the afternoon of Jan. 6, 2021, sitting in the White House, doing nothing but watching television to see if his violent supporters who had invaded the capitol would prevent Congress from receiving the electoral votes by which Joe Biden had defeated him. The hearing added to the considerable public evidence that Trump committed multiple crimes before and on Jan. 6, including conspiring to obstruct a congressional proceeding and to commit election fraud.

Open-minded viewers see, in other words, that the House committee is making the case that Trump is a criminal.

But the House is not a prosecutor. And those who are, the attorneys of the U.S. Department of Justice, led by Attorney General Merrick Garland (disclosure: we are friends, but I know nothing of his DOJ work), have brought no criminal case. Why? People are asking, increasingly: Where is DOJ? Where is Garland?

We know that DOJ is conducting a wide-ranging criminal investigation. We know that it includes Trump’s conduct. We see that in contrast to the House committee, which in effect is already summing up the case that it has made against Trump, DOJ is going slower.

That is as it should be. Yes, the House committee has, to date, conducted a vast investigation — in private, it has interviewed more than 1,000 witnesses, plus it has had numerous committee and staff meetings and held eight public hearings (and it has announced that more will come, in September). But a congressional investigation sets its own pace. It is not subject to any on-the-spot supervision. DOJ is, to analogize from legislature to law enforcement, the cops, prosecutors, judge, and jury, all in one entity. With regard to Jan. 6, the committee is gathering information to inform itself (Congress) and the public it serves. The committee is not taking actions that will be judged in court.

A DOJ investigation, by contrast, begins when it receives allegations of federal crimes. Agents assess such allegations and, when there is something to them, investigate more fully. They conduct interviews and gather and analyze other evidence. Prosecutors, working with the agents, can, where merited, get court authority to employ a grand jury to advance the investigation. A grand jury, advised by prosecutors, can issue subpoenas for witnesses and documents, take sworn testimony, and obtain court orders that immunize witnesses and require them to speak.

A DOJ investigation culminates in assessing what the investigation has learned, including whether there is evidence beyond a reasonable doubt of crime(s) by a particular person and whether such a case would, if brought, win at trial. If DOJ concludes no, the investigation ends there. If DOJ concludes yes, it asks the grand jury to approve an indictment.

A grand jury indictment begins a public criminal case. The defendant will, in pretrial proceedings, attack the legality of the charges and litigate other matters. The judge will rule on those motions, determining if the case will go to trial. If it does, the prosecution then must show a jury evidence of the defendant’s guilt beyond a reasonable doubt. Only then will he be convicted. Then he will be sentenced by the judge. A criminal case is, in sum, a much longer, more complex, and more directly accountable process than any congressional hearing.

This is the reason why, in past instances when both Congress and federal prosecutors investigated possible criminal activity high in the executive branch, Congress “went first,” completing its work ahead of the criminal justice process. In Watergate, the Senate Select Committee chaired by Sen. Sam Ervin held its momentous hearings in 1973, almost a year before the special prosecutor obtained indictments that led to late 1974’s conspiracy trial. In Iran-Contra, the Senate and House Select Committees held hearings in 1987, almost a year before a grand jury indicted defendants who later were tried.

In today’s Jan. 6 context, it is possible that DOJ has been too slow, and perhaps stiff, in seeing and then investigating Trump’s possible crimes. According to a New York Times report, for example, DOJ prosecutors were surprised by Cassidy Hutchinson’s July 13 televised House testimony about Trump’s knowledge and conduct leading up to and on Jan. 6.

But maybe DOJ has not been plodding unduly. We know that its Jan. 6 criminal investigations involve large numbers of people and extensive video, electronic, and other evidence, including some witness interview transcripts provided to it by the House committee. DOJ has obtained grand jury indictments against over 800 people who were Jan. 6 capitol rioters and invaders. DOJ has brought seditious conspiracy charges against leaders of two extremist group (the Proud Boys and the Oath Keepers). It has obtained in court and executed search warrants, seizing telephones from former Assistant Attorney General Jeffrey Clark and Trump private lawyer John Eastman. Its grand jury/juries have subpoenaed witnesses to testify — two former senior aides to Vice President Mike Pence testified in Washington before a grand jury last week. And DOJ perhaps is doing much more than that — because federal agents and prosecutors do not, behaving properly, talk about their work, we on the outside see little of what federal criminal investigators do day to day.

DOJ’s work, including its investigation of Trump, is up against no pressing deadline. The ordinary federal statute of limitations gives five years to obtain charges for criminal conduct.

DOJ’s investigation also is not limited by electoral politics. As much as possible, DOJ ignores politics, including election calendars. The fact that midterm elections are coming in November is relevant to every member of the House January 6 committee—the election will determine which party controls the House next year, plus most of them are running for reelection. But the midterms have no relevance to DOJ as it investigates Trump and others for possible 2020 and 2021 crimes.

DOJ also is not constrained by the fact that a presidential election will come in 2024. DOJ policy decrees that the attorney general, through the deputy attorney general, must give written approval before anyone in the department may open an investigation of a declared presidential candidate. But its investigation of Trump is open already, and he is not a declared candidate. This is why Deputy Attorney General Lisa Monaco recently said that any Trump announcement that he is running for president in 2024 will not affect DOJ’s work. And this approach is proper — no person should get to, by announcing his presidential candidacy, immunize himself from prosecution for past crimes.

What DOJ is doing, and what it will continue to do, is appropriately aggressive, fact-based investigative work. Investigating Trump and then deciding whether he should be prosecuted could continue into 2023. So be it. It is the right, ordinary way of federal criminal investigations.

John Q. Barrett is the Benjamin N. Cardozo Professor of Law at St. John’s, a biographer of former U.S. Attorney General and Nuremberg chief prosecutor Robert H. Jackson, a former Iran-Contra associate independent counsel, and a former U.S. Department of Justice attorney. This piece appeared originally in Newsweek on July 28, 2022.