Today’s Edition: Ramping up investigations of Trump.

August 6, 2021

          In an underreported development, the House Select Committee investigating the January 6th insurrection has taken over investigation of misconduct by the DOJ under Trump. See Politico, “Jan. 6 select panel takes over House probe of Trump DOJ.” The investigation of the DOJ was previously under the House Oversight Committee, chaired by Rep. Carolyn Maloney (D-N.Y.) In making the handoff to the Select Committee, Maloney said that the Oversight Committee looks forward to the Select Committee “fully exposing the former president’s unconstitutional attacks on our democracy and attempts to stay in power after the American people voted him out of office.”

          The consolidation of the investigation under the Select Committee is a positive development that will allow for a coordinated investigation and comprehensive report regarding efforts by Trump, members of Congress, and Deputy Attorney General Jeffrey Clark to overturn the election.  To date, those actors have only benefitted from their misconduct. See Slate, Jeffrey Bossert Clark, who planned a coup at the Justice Department, a Sweet New Gig.”

          The seriousness of the Select Committee’s investigation is reassuring to Americans looking for answers and accountability. But Congress can only provide answers, not accountability. The Department of Justice is charged with enforcing the criminal laws of the United States. As noted previously in this newsletter, it is unclear whether the Department of Justice under Merrick Garland is committed to enforcing those laws as they apply to Trump and his co-conspirators. Many readers have suggested that the absence of any indication that the DOJ is investigating the attempted coup is a sure sign that it is working diligently in the background to bring the conspirators to justice. Maybe. Maybe not. The absence of evidence could be a sign the DOJ is doing nothing. If the DOJ is in need of guidance on how to proceed, the eminent constitutional scholar Laurence Tribe (with Barbara McQuade and Joyce Vance) suggested a “roadmap” to the DOJ for investigating Trump. See WaPo, “Opinion | Here’s a roadmap for the Justice Department to follow in investigating Trump.”

          As expected, an opinion piece written by Tribe, McQuade, and Vance is as good as it gets in explaining the rationale for an investigation and the potential criminal exposure of Trump and his co-conspirators. I highly recommend the article. But if you are short on time, here is the thesis of the article:

          Merrick Garland has worked to restore the badly frayed public trust in a nonpartisan DOJ. But failing to investigate Trump just to demonstrate objectivity would itself be a political decision — and a grave mistake. If we are to maintain our democracy and respect for the rule of law, efforts to overturn a fair election simply cannot be tolerated, and Trump’s conduct must be investigated.

          Succinct, logical, and to the point. I wish I had made the same point as economically and affirmatively as did Tribe, McQuade, and Vance. For a more critical view of Garland’s efforts to rehabilitate the DOJ by reverting to the status quo ante, see Zena Wolf in Talking Points Memo, “Institutionalism Can’t Save Us Now.” Referring to the DOJ’s deceitful role in attempting to add a question regarding citizenship to the 2020 Census, Wolf writes, “by pretending wrongdoing didn’t occur in his own department, [Garland] is brushing illegal offenses under the rug and failing to hold those responsible accountable.”

          We do have some insight into the DOJ’s prosecutorial judgment regarding the January 6th insurrectionists. The initial plea bargains obtained by the DOJ have resulted in “time served” or “home confinement” for defendants who entered the Capitol on January 6th. The Chief Judge of the U.S. District Court in D.C., Beryl Howell, has questioned the DOJ’s standard charge of “illegally demonstrating in the Capitol building” for non-violent rioters. Judge Howell has described the charge as a “petty offense” that would apply to someone who trespassed on government property after dark. See CNN, “US Capitol riot: Chief DC federal judge questions misdemeanor deals.” Judge Howell went on to ask,

          Does the government have any concern [about] the defendant joining a mob, breaking into the Capitol building [and] terrorizing members of Congress, the vice president, who had to be evacuated?

          I agree with Judge Howell. The defendants were not merely “illegally demonstrating” in the Capitol building. They were attempting to stop Congress from performing an explicit constitutional duty necessary to the peaceful transition of power. The federal prosecutors in D.C. either do not understand the seriousness of what happened on January 6th or are applying leniency that is difficult to explain but may be based on the fact that many of the insurrectionists are white evangelical nationalists.  

          The apparent failure of the DOJ (thus far) to hold the January 6th insurrectionists accountable for their actual crime—insurrection—brings us back to the Select Committee. If the Committee is successful in exposing the seriousness and pervasiveness of the threat, it may spur the DOJ into action (if it is not already working diligently in the background to bring the conspirators to justice). The work of the Select Committee will take time, but each new revelation increases the probability that Trump and his coconspirators will be held to account. Good.

Concluding Thoughts.

There are other major stories brewing, including a possible vote in the Senate on the bipartisan infrastructure bill over the weekend. As Republicans accept Democratic cooperation on the bipartisan bill, McConnell has pledged that not a single Republican will vote to increase the debt limit—even though the bipartisan bill will increase the deficit by $256 billion. The effort in California to recall Governor Newsom may determine whether that state turns into the next Florida—with a GOP governor who discourages vaccination and opposes masks. Lawmakers in Georgia have taken the first steps in their effort to overturn election results in Fulton County in 2022. And, finally, the Biden administration is considering withholding funds from healthcare facilities that refuse to mandate vaccinations for workers.

          These are all major stories that will unfold over time—and can wait until after the weekend. But it feels right to head into the weekend with the focus on the possibility that the Select Committee will make a difference by exposing the full depravity of Trump’s tenure. Seeking accountability and justice should be the only goals of the Select Committee. But if it achieves those goals, an ancillary effect will be to embroil the GOP in turmoil for the next two years as Trump fights for survival, fending off challengers who seek to exploit his growing weakness. For all of the GOP’s efforts to rig the elections in 2022 and 2024, their political prospects are tied to Trump’s declining political fortunes and increasing criminal exposure. Relying on Republicans to fail is not a strategy, but we should not overestimate their strength. We can beat them. We did in 2020. We can do so again.

          Talk to you on Monday!