DOJ’s failure of imagination
June 20, 2023
The Washington Post published an important article on Monday that describes the DOJ’s reluctance to investigate Donald Trump and his senior aides in the aftermath of January 6th. A non-paywalled version of the article is here: WaPo, FBI resisted opening probe into Trump’s role in Jan. 6 for more than a year.
The article is deeply sourced, based on a dozen interviews with DOJ and FBI personnel. If you have time, read the entire article. (Fair warning; it is lengthy but deserves your full attention.) The article provides context and explanations for the year-and-half delay in the DOJ’s investigation of the leaders of the attempted coup and insurrection on January 6th.
Although the WaPo headline refers to resistance by the FBI, the article focuses on the decision-making processes at both the DOJ and FBI. And given that the FBI is part of the Department of Justice, the FBI must follow the enforcement priorities set by the DOJ. To that extent, the buck stops with Attorney General Merrick Garland.
The article raises three questions:
1. Assuming that the WaPo reporting is accurate, does the delay matter given that Trump has been indicted for unlawfully retaining defense secrets?
2. What lessons should the DOJ and FBI learn, if any, from the reporting?
3. Were American citizens right to be concerned over the year-long silence from the DOJ about the investigation of Trump?
The article contains three main theses:
Senior leaders in the DOJ and FBI did not view investigating Trump and his aides as a priority in the January 6th investigation, focusing instead on the insurrectionists who assaulted the Capitol—the so-called “bottom-up” approach frequently used when investigating a drug cartel;
Concern about the DOJ’s reputation as a non-partisan institution caused the agency to impose a higher burden for opening an investigation regarding Trump's conduct than was applied to other Americans suspected of crimes; and
The FBI was reluctant to wade into a second Trump investigation given that the first investigation led to the firing of senior FBI officials and threats of retaliatory investigations by GOP members of Congress.
Although some defenders of Merrick Garland and the DOJ are attacking the article as “spin” or pointing to minor factual discrepancies, the criticisms do not undermine the main premise of the article: That the DOJ treated Trump with undue deference and applied higher evidentiary hurdles because of concern over the DOJ’s reputation, resulting in a fifteen-month delay before the FBI finally opened an investigation into Trump.
The article has opened a firestorm of criticism, accusations, recriminations, and revisionist history in social media and major news outlets. Rep. Adam Schiff responded to the article in his usual straightforward manner, tweeting
This Washington Post investigation confirms what I have been concerned about for almost two years: While the DOJ moved quickly to investigate the foot soldiers of the Jan 6 attack, it waited far too long to investigate leaders of the effort to overturn the election.
Professor Laurence Tribe offered tempered criticism of his former student (Merrick Garland), tweeting
Great journalism has shown Garland and Monaco well-intentioned but profoundly unwise in slow walking the investigation into Trump and those around him. Their fear of looking political backfired badly. Whether the harm was irreparable remains to be seen.
Others have called for the resignations of FBI Director Christopher Wray and Merrick Garland (e.g. Jennifer Rubin).
1. Assuming that the WaPo reporting is accurate, does the delay matter given that Trump has been indicted for unlawfully retaining defense secrets?
It is, of course, impossible to know how history would have changed if the DOJ and FBI had commenced an investigation of Trump in the immediate aftermath of January 6th rather than waiting fifteen months. But given the speed with which special counsel Jack Smith has driven his investigations, it is reasonable to assume that an investigation commencing in March 2021 would have resulted in an indictment sometime in 2022.
An indictment against Trump in 2022 would have mattered. It would have likely affected the 2024 GOP presidential primary process. For example, only weeks after the Mar-a-Lago indictment, the tide of opinion in the GOP is beginning to turn against Trump. Imagine where the GOP might be today if Trump had been indicted a year ago.
There would likely have been a trial in late 2023 or early 2024—soon enough to convict Trump before the 2024 election. An earlier investigation may have resulted in cooperating witnesses or defendants who flipped on Trump in 2023—developments that would have accelerated the effort to hold others accountable (like John Eastman, Jeffrey Clark, and Rudy Giuliani.)
So, yes, the delay by the DOJ and FBI mattered. A lot. The delay emboldened Trump to commit other crimes (retention of defense secrets) and (possibly) to engage in corrupt business dealings with Saudi Arabia ($2 billion investment in Jared Kushner’s spanking-new investment advisory business).
The delay also allowed Republicans to revise history and mount retaliatory investigations designed to spread misinformation in defense of Trump and undermine those who sought to hold him accountable.
Most importantly, it now appears that the delay has preserved the possibility that Trump can be reelected before he is tried for his attempted coup. His plan from the beginning was to use a second term to dismiss the charges against him. See this article from July 17, 2022 in Rolling Stone, Trump Says He Needs 2024 Election Win to Stop Criminal Probes. Per Rolling Stone, Trump told a friend, “when [not if] he is president again, a new Republican administration will put a stop to the [Justice Department] investigation.”
The fifteen-month delay in opening an investigation is time that will never be recovered, no matter how quickly Jack Smith works. The delay inflicted an irreparable injury on the people of the United States, the rule of law, and the Constitution.
2. What lessons, if any, should the DOJ and FBI learn from the reporting?
There are two primary lessons that the DOJ and FBI should learn from the report in WaPo. The first is that it was a mistake to prioritize the reputation of the DOJ over the pursuit of justice. If the pursuit of justice results in public disapproval of the DOJ, the pursuit of justice should prevail. Merrick Garland and the DOJ apologists who were more concerned about the reputation of the DOJ tarnished that reputation and breached their oaths to the Constitution.
The second is that the DOJ suffered from a lack of imagination. Confronted with the first-ever attempted coup in American history, it applied an investigation model designed for investigating drug cartels and criminal syndicates. In those investigations, prosecutors frequently know who the street soldiers are but not the “kingpins.” Or they may have direct evidence against the street soldiers but no evidence against the leaders of the criminal syndicate. Working from the bottom up in such circumstances makes sense.
The “bottom-up” drug cartel approach did not apply to Trump's attempted coup and insurrection. The attempted coup and incitement to insurrection occurred on live television and in press conferences and tweets by Trump and his surrogates. The DOJ could have commenced investigations based on publicly sourced information—but they lacked the imagination to do so.
And they lacked the imagination to understand that Trump would mount a second attempted coup by running for president in 2024. The attitude of, “This is the way we always do it” failed the DOJ and FBI grievously.
As the WaPo article makes clear, the DOJ and FBI acted only when they were embarrassed by the efforts of the media and the January 6th Committee. Rachel Maddow led a one-woman crusade to demand an investigation into the fake electors. Her efforts spurred attorneys general from several states to open such investigations and make referrals to the DOJ to open similar investigations.
That pressure finally forced Lisa Monaco (the number two person in the DOJ) to assert during a news conference that the DOJ investigators “are looking at those. . . referrals” from the state attorneys general. As noted in the WaPo article, Monaco’s claim the DOJ was considering the referrals was a surprise to many who were working on January 6th prosecutions. (“Law enforcement officers . . . were taken aback by Monaco’s comments because they had not been told work was beginning . . . .)
The role of the January 6th Committee cannot be overstated. Credit goes to Nancy Pelosi, Bennie Thompson, Liz Cheney, and the members and staff of the Committee who focused the nation’s attention on the many crimes committed by Trump and his aides before, during, and after January 6th. Per WaPo,
One person directly familiar with the department’s new interest in the case said it felt as though the department was reacting to the House committee’s work as well as heightened media coverage and commentary. “Only after they were embarrassed did they start looking,” the person said.
Thus, the final lesson is that “public embarrassment” should not be the threshold for initiating an investigation. Long before Rachel Maddow and others highlighted the obvious conspiracy between fake electors across the nation, the DOJ had sufficient “predication” to commence an investigation. The fact that it did not is a stain on the DOJ’s record that will never be removed. The best we can hope for is that the DOJ will engage in introspection about how it lost its way in the face of the greatest threat to American democracy since the Civil War.
3. Were American citizens right to be concerned over the year-long silence from the DOJ concerning the prosecution (or absence thereof) of Trump?
Yes. Many Americans (including me) interpreted the absolute silence from the DOJ and FBI about Trump during the first year and a half after January 6th as evidence that the DOJ was not investigating Trump. Many others, including political commentators and readers of this newsletter, were convinced that the absolute silence was “proof” that the DOJ was working diligently in the background to build “an airtight case” against Trump because “If you shoot at the king, you dare not miss.”
Citizens concerned about the possibility that a coup-plotting president would escape accountability were dismissed as “impatient,” “immature,” “rash,” “tiresome,” and “unprofessional.” In fact, they were rightly concerned that the DOJ was failing in its central mandate. The delay shook their faith in the legitimacy and righteousness of the DOJ—and yet they were viewed as “the problem” for criticizing the DOJ.
It is, of course, appropriate for the DOJ to refrain from commenting on specific investigations—except when it is appropriate for it to make a comment. When a crime is committed in public or results in mass casualties, the DOJ and FBI routinely issue statements about the status of their investigations. (The “public interest” exception to comments on ongoing investigations is permitted by the DOJ Manual at 1-7.400.)
Here, the DOJ’s silence was used as a cover for its inaction. Shame on the DOJ for doing so and shame on us for accepting that state of affairs. If Merrick Garland or Lisa Monaco had acknowledged six months after January 6th that they had not opened an investigation into Trump, history would be different.
In the future, we need greater accountability and transparency from the DOJ regarding its investigation of matters relating to compelling public interest. An investigation of an attempted coup constitutes compelling public interest. The DOJ needs to take a serious look at how its communication strategy failed to apprise the American public of the status of its investigations into Donald Trump.
Concluding Thoughts.
I went on too long about the WaPo report, so I promise to cover several important stories tomorrow that readers have highlighted. On Monday, the most important story not covered above is that Trump was interviewed by Brett Baier on Fox. The interview amounted to an extended confession of guilt that significantly increased Trump's criminal exposure for unlawfully retaining defense secrets. See Newsweek, Legal Experts React to Trump's Interview With Bret Baier on Fox News.
There are two takeaways from the Fox interview: First, Trump is incapable of avoiding self-incrimination. Every campaign appearance, interview, debate, and social media post will make Jack Smith’s job of obtaining a conviction easier. Ongoing self-incrimination will, in turn, make Trump a weaker candidate.
The second point is that Trump's defense to the indictments is to win the 2024 presidential election. That makes Trump more desperate and unpredictable—which makes him a weaker candidate.
We cannot count on Trump to defeat himself. But we should recognize that win or lose the GOP nomination, he will inflict massive damage on the GOP and his fellow primary contenders. If you are sitting around worried about Joe Biden’s challenges, the relevant question is always, “Compared to what?”
A good answer is “Compared to a self-incriminating indicted sexual abuser who must destroy his fellow Republicans to have any hope of staying out of jail.” That process will weaken Trump, weaken his party, and repel voters at the margins of his support. In an evenly divided electorate, that is good news for Trump's opponent every day of the week!
Talk to you tomorrow!
As one who thought the DOJ was doing a serious investigation, on the basis that they understood how dangerous their opponent was and how airtight a case they needed to bring ("if you strike the king you must kill him"), I need now to say to those I said needed to calm themselves down and give the system the opportunity to work, that I apologize for that. I'm particularly pissed off at myself after 60 years of being able to prove that the nitwits who rise to the top of American govrnment usually can't tie their own damn shoelaces, that I let myself get bamboozled this way. I know these morons for the idiots they are! My books are full of the proof.
I wanted what we all wanted, to believe that normalcy had been restored, when the truth is normalcy hasn't been anywhere in contention for 80 years (at least!). The truth is that Merrick Garland, after all the years spent promoting his judiciousness as a judge, has lost whatever edge he had when he took on McVeigh and Waco. Too bad Jack Smith can't become AG. He at least appears to know how to tie his shoes.
We saw it on TV. The insurrection led by Donald J. Trump. The moment he left office, he should have been cuffed. Busted and charged with insurrection. Charged with tampering with election results. Charged with the fake electors scheme. Mark Meadows and anyone connected with Trump's clumsy attempt at a coup should have been arrested and held without bail. Eastman, Rudy, Clark, etc.
I won't spend any more of my precious consciousness whining about the DOJ and Garland. The wheels are in motion - a couple of years late. But hey, what's the rush? /s
Now that I have calmed down after the WAPO article stirred my bile, I return to the concept that we should worry less about the ultimate result in a legal sense. And work really hard to elect decent people next year. Work for the Blue Trifecta. Work for a Blue Tsunami of voters to take back this nation from the fascists and the oligarchs who fund them. Work to eject the bigoted yahoos on a state and local level.
We will not get all the convictions and sentences we want. But Trump is looking weaker and more demented every day. His fellow hyenas and jackals are circling the soon to be carcass.
As Jack Smith and Fani Willis and others haul him into court, he will look more and more like the creepy crook he is. Not to the MAGA maniacs, of course. But let's remember they are a percentage of the roughly 25% of Americans who consider themselves Republicans. 50% of voters consider themselves "Independents". There is a boatload of them who will be disgusted enough to not vote for a creepy crook.
And then there is the incredible work the Biden administration is doing - HCR described it well again today. I am angry at the DOJ. But that won't get us the election results we need and the country deserves.