I wrote this post over the weekend about the continuing importance of the January 6th insurrection and the attempted coup it was a part of. I wanted to follow up on that post with some additional thoughts. One TPM Reader wrote in to tell me that, while she agreed with all the points I made, it was still a major error that the Department of Justice took so long to really get the bit in its teeth over January 6th. This can seem a bit out of whack today since Jack Smith is clearly all in on both Trump prosecutions. But that reader is right.
It will probably be many years, if ever, before we know just what was happening at DOJ and what the top leadership was thinking and doing in the months after the insurrection. But to the best of my knowledge, it was well into 2022 before we had any really clear evidence that the DOJ was seriously investigating the coup itself — as opposed to the violent incursion on January 6th — and the top decision-makers who lead it, including ex-President Trump. In other words, it was well over a year, probably as much as a year and a half, after the events. (The first Jan. 6 committee public hearing was on June 9th, 2022; Merrick Garland appointed Jack Smith on November 18th 2022.)
One rejoinder to this criticism is that just because we didn’t know what was happening doesn’t mean nothing was happening. Indeed, I made this point myself a number of times as these events were unfolding. But that answer doesn’t really add up, either as a justification or even a supposition that squares with the facts. It’s certainly true that the DOJ was in no position to roll out indictments in January or February of 2021. No one knew precisely what had happened. But there’s no way they couldn’t generate evidence for indictments within a year or eighteen months. It may seem like an extreme example, but consider the time it took to bring major indictments tied to 9/11 — weeks to months — or release the relevant findings, given that many of the key actors died in the attacks. More important to me is that, in the case of January 6th, there is evidence that it took a long time for a serious investigation to even get underway. We don’t need to infer it.
One point that has always struck home to me is how reliant DOJ seemed to be on the crowd-source investigators that put together precisely who the various insurrectionists were and then handed that information over to the FBI and other federal law enforcement agencies. TPM alum Ryan Reilly actually has a new book out about this. This isn’t all a bad story. It’s a heroic one in many ways. What’s more, the story illustrates the way in which an increasingly robust open source intelligence community is in some key ways more able to mobilize and sleuth out certain kinds of criminal activity — through a mix of ubiquitous social media, photography and video — than traditional law enforcement techniques. For good or ill there’s nothing quite like posting a photo on Twitter and asking people to respond if they recognize the face. But even with all of that, there’s no way that the reliance on the public sleuths didn’t trace back to a lack of urgency and focus within federal law enforcement.
There are other more tangible indicators that a serious investigation took time to get started.
During that roughly 18 months, when Merrick Garland was frequently asked why there hadn’t been any law enforcement action targeting the authors of the Trump coup, he had a two-part answer. They were following where the evidence led rather than coming at it with any set of preconceptions, and they were taking a bottom-up approach. In other words, they would start with the crimes we saw on camera on January 6th and follow the trail.
There is a certain “just the facts, ma’am” logic to this. But it doesn’t cut it as any kind of explanation or proper approach. Scientists don’t blindly pull levers and combine chemicals and see what happens. They develop theories and then they test them. Similarly, prosecutors see evidence of a crime or indications of a crime and start investigating. You need only look in the virtual pages of TPM to know that there was abundant evidence of criminal conduct tied to the Trump coup before January 6th even happened. Much of the “fake electors” part of the conspiracy was reported in real time. Indeed, our team reported days after January 6th that the fake electors scheme was likely to be a key part of any eventual prosecution.
Another story I would still love to hear is just how much the January 6th committee investigators dug up on their own and handed over to DOJ, thus forcing its hand in some ways, and how much they reduplicated DOJ findings but pushed those findings into the public realm. It’s certainly not that we didn’t learn a lot from the January 6th committee. But the outlines were there and visible for the eye to see in real time.
The simplest and I think best explanation of what happened is that Merrick Garland was extremely concerned about any appearance that the Biden administration was persecuting its predecessor or, more specifically, that it came into office convinced that a crime had been committed rather than waiting for an accumulation of facts which made the decision to prosecute inevitable and beyond question. That caution is well founded. But it always had to weigh against other critical equities. That weighing was off. Behind the scenes I’m sure the coup was being investigated from day one, but almost certainly with an investigation on a tight leash and with a very high standard required to expand the probe.
Yet the investigation did kick into high gear. So does it matter? Yes. It does. The most obvious way it matters is that prosecutors are now in a mad dash to bring their prosecutions to trial before the 2024 election. That’s the obvious problem. Justice delayed is justice denied. Only, in this case, the delay may mean justice literally never comes at all. But that is not the only problem. The bigger problem is one that cuts at the shortcomings of the technocratic attitude toward governance that Democrats are always prone to.
Criminal justice is never just about adding up quanta of evidence and securing conviction and punishment of the individuals who violated the law. The criminal justice system is the way society talks to itself about what is right and wrong and the limits of acceptable behavior. Hopefully we all know murder is wrong. But, if there’s any question, we are reminded because we see that murderers are arrested and incarcerated. In cases when they’re not, we know that the guilty must hide or at least be hiding their tracks for years or forever. If murderers can operate with impunity they bring the law into contempt. The story we are telling ourselves is unclear.
Murder has always been the cardinal crime. The need for society to communicate with itself in this way is in some ways even more important with crimes of greater ambiguity or ones in which powerful social actors argue for their acceptability. While rape statutes have been revised and toughened in recent decades, one clear way society used to tell itself that rape wasn’t a serious crime or wasn’t always a crime was that it was rarely prosecuted. Drunk driving is an even more ambiguous case. By waiting so long to bring the machinery of prosecution onto the stage, Garland’s Justice Department told the country in actions that the line separating ordinary politics from criminal conduct in this case was at best unclear. The biggest driver of the normalization of the January 6th coup was the Republican Party’s after-the-fact decision to support it. But in large part the public decided that the actions were acceptable — or at least acceptable enough — because federal law enforcement told them, through their lack of action, that they were. The GOP’s ability to rally behind the insurrection was assisted by that inaction.
There’s an ancillary part of the equation which deserves mention. The professionalized and technocratic practice of federal law enforcement puts a high priority on confidentiality and secrecy. That’s for good reason. Prosecutors have vast powers to probe into people’s private affairs with only very limited checks. That information should remain secret unless prosecutors assemble strong evidence of criminal conduct. But frequently this fetish for secrecy comes into conflict with the inherently public and in key respects political (in the broad sense of the word) work of prosecutors. A good example of this came up during the Mueller investigation. During the wrestling over the disclosure of the findings of the investigation we heard again and again that key findings simply weren’t the public’s business. It was as though an investigation into matters of the highest public importance were no different from a probe into a doctor’s tax evasion or family sex abuse case.
The good news, of course, is that a serious investigation did get underway. It wasn’t to be a replay of the aftermath of the global financial crisis — though the facts and equities involved were and are dramatically different. Those decisions — to fully investigate the insurrection — came under Merrick Garland too. So it’s a mixed verdict. We’ll learn a lot more over the next year about just how much that delay mattered. But it mattered and it was a mistake.