Garland Under Pressure to Indict Trump

Democrats want the DOJ to act more quickly.

AP (“Jan. 6 panel puts Garland in ‘precarious’ spot, ups pressure“):

Lawmakers investigating the Jan. 6 attack on the Capitol are increasingly going public with critical statements, court filings and more to deliver a blunt message to Attorney General Merrick Garland and the Department of Justice.

President Donald Trump and his allies likely committed crimes, they say. And it’s up to you to do something about it.

“Attorney General Garland, do your job so we can do ours,” prodded Rep. Elaine Luria of Virginia.

“We are upholding our responsibility. The Department of Justice must do the same,” echoed Rep. Adam Schiff, D-Calif.

Their rhetoric, focused this week on two contempt of Congress referrals approved by the committee, is just the latest example of the pressure campaign the lawmakers are waging. It reflects a stark reality: While they can investigate Jan. 6 and issue subpoenas to gather information, only the Justice Department can bring criminal charges.

Committee members see the case they are building against Trump and his allies as a once-in-a-generation circumstance. If it’s not fully prosecuted, they say, it could set a dangerous precedent that threatens the foundations of American democracy.

The lawmakers seem nearly certain to send a criminal referral to the Justice Department once their work is through.

It all puts Garland, who has spent his tenure trying to shield the Justice Department from political pressure, in a precarious spot. Any criminal charges related to Jan. 6 would trigger a firestorm, thrusting prosecutors back into the partisan crossfire that proved so damaging during the Trump-Russia influence investigation and an email probe of Hillary Clinton.

I’m almost certain Trump committed multiple crimes during his tenure as President even apart from the attempt to steal the 2020 election. I’m almost as sure that there’s enough evidence at this point that a DC grand jury would indict. I’m much, much less confident that the case is strong enough to secure a conviction and, in this case, an acquittal would very much be taken as exoneration.

Beyond that, lawmakers putting pressure on the Attorney General here is just a bad look. While indicting a former President—let alone the guy Garland’s boss defeated to get the job and his most likely opponent two years from now—is inherently political, the AG seeming to succumb to partisan appeals to use the criminal justice system against a political opponent is highly problematic.

And it’s not like Garland is doing nothing:

Garland has given no public indication about whether prosecutors might be considering a case against the former president. He has, though, vowed to hold accountable “all January 6th perpetrators, at any level” and has said that would include those who were “present that day or were otherwise criminally responsible for the assault on our democracy.”

It’s already the largest criminal prosecution in the department’s history — for rioters who entered the Capitol building on Jan. 6 as well as members of extremist groups who are accused of planning the attack. More than 750 people have been charged with federal crimes. Over 220 riot defendants have pleaded guilty, more than 100 have been sentenced and at least 90 others have trial dates.

As I’ve said from the beginning, a political investigation by House Democrats* using the subpoena power of Congress is naturally at odds with a criminal investigation. It’s very much in the interests of DOJ to keep their cards close to the vest, leveraging their information quietly to pressure potential witnesses. Politically-motivated leaks coming from the Committee undermine that effort.

Parts of the department’s investigation have overlapped with the committee’s. One example is in late January when Justice announced it had opened a probe into a fake slate of electors who falsely tried to declare Trump the winner of the 2020 election in seven swing states that Joe Biden won. Three days later, lawmakers subpoenaed more than a dozen people involved in the effort.


Another point of friction with the Justice Department is the effort to enforce subpoenas through contempt of Congress charges.

The House approved a contempt referral against former White House chief of staff Mark Meadows in December after he ceased cooperating with the Jan. 6 panel. While an earlier contempt referral against former Trump adviser Steve Bannon resulted in an indictment, the Department of Justice has been slower to decide whether to prosecute Meadows.

“The Department of Justice is entrusted with defending our Constitution,” Rep. Liz Cheney, the Republican committee chair, said at a hearing this week. “Department leadership should not apply any doctrine of immunity that might block Congress from fully uncovering and addressing the causes of the January 6 attack.”

A decision to pursue the contempt charges against Meadows would have to come from career prosecutors in the U.S. attorney’s office in Washington before senior Justice Department officials would weigh in and decide how to proceed.

Here, though, I think Garland is wrong:

Bringing a case against Meadows would be more challenging for prosecutors than the case against Bannon, in large part because Bannon wasn’t a White House official during the insurrection.

The Justice Department has long maintained that senior aides generally cannot be forced to testify if a president invokes executive privilege, as Trump has done. And bringing charges could risk undermining the longstanding principle that lets the executive branch of the government keep most discussions private.

While I go further than some on executive privilege, believing that former Presidents should indeed have the protection of executive privilege,** it shouldn’t extend to legitimate criminal inquiries. If aides to a sitting President can be compelled to testify in impeachment proceedings—and even George Washington agreed that they could—then surely those of an ex-President under investigation for multiple crimes can be forced to undergo deposition.


*And, no, the fact that two on-the-outs-from-the-party Representatives who got elected under the Republican banner, Adam Kinzinger and Liz Cheney, were appointed by Speaker Pelosi in defiance of Republican leadership doesn’t change that.

**The whole point of which is to allow frank and candid discussion. It’s bad enough that Presidents have to worry about their employees writing tell-all books. Having their private conversations subject to politically-motivated fishing expeditions would undermine their ability to do their job.

FILED UNDER: Crime, Democracy, Law and the Courts, , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Sleeping Dog says:

    It’s likely that the DoJ doesn’t believe it has the evidence to convict TFG if indicted. While to indict him and have him beat the wrap is the worse possible outcome. Until someone who was in the room when TFG conspired to cause a coup flips, indicting him is wishcasting.

    But not pursuing the contempt complaint against Meadows, is dereliction of duty.

  2. James Joyner says:

    @Sleeping Dog: My lay understanding is that DOJ has historically been incredibly reluctant to pursue those sorts of cases, seeing them as political hot potatoes. And the courts have tended to see them a political questions.

  3. Franken says:

    The world is watching this and laughing at the DOJ and if Trump is not in Prison 12 months from now then that laughter is well justified.

  4. Barry says:

    The problem is that the GOP has realized that this policy is a carte blanche, and is taking advantage of it.

  5. JKB says:

    Administrative, or in this case, congressional, investigations and criminal investigation/prosecution are at odd with each other. That is why when an administrative investigation appears to be uncovering something subject to criminal prosecution, the administrative investigation is put on hold, while different criminal investigators pursue the criminal aspects. In administrative, and congressional, investigations testimony can be compelled. But if a government body compels testimony, then seeks criminal prosecution off the testimony, they run up against the 5th amendment.

    This congressional witch hunt has already muddied the waters to the point the only thing possible from a criminal indictment is fodder for electioneering. Which is exactly what these Democrats want even if it destroys the credibility of the DOJ.

  6. Barry says:

    @Barry: and by ‘taking advantage of it’, I mean ‘realizing that they are above the law to the point of violence.’

  7. Barry says:

    @JKB: “This congressional witch hunt has already muddied the waters to the point the only thing possible from a criminal indictment is fodder for electioneering. Which is exactly what these Democrats want even if it destroys the credibility of the DOJ.”

    Blah, blah, blah…

  8. gVOR08 says:

    @Barry: As I’ve noted before, the ex-presidents who’ve benefited are Nixon, Reagan, W, and Trump. Only Republicans, and only one and a half (H. W. and Ford) Republicans since Eisenhower not on the list. I shudder to think what President DeSantis or Cruz would do.

    And we’re giving them a pass because of DoJ opinions, not law, and certainly not the Constitution. If you asked James Madison whether the president should be immune from the law I think he’d move further down the bar. What we have is a raw conflict between conservatives who prioritize a strong executive and liberals who prioritize the rule of law.

  9. gVOR08 says:

    In a way, @JKB: is right. At this point we should be hearing about the Committee and DoJ deconflicting. Instead we’re seeing Congress trying to pressure DoJ into acting at all.

  10. Tony W says:

    No matter the charges, no matter the evidence, no matter the dead bodies lying in the corridors of the courthouse with Trump-Branded Bullets lodged in their foreheads, Trump will not be unanimously convicted by a jury of his peers because there will always be a MAGA in the jury pool.

    It is an unfortunate situation, but under our current system, the former guy is above the law.

  11. Erik says:

    Congress members should shut up about this and retract what they have said. I get that these are political and not legal statements, and that is exactly the problem. Now if (fingers crossed-when) DOJ charges Trump, the waters are even more muddy than they would have been around the issue of political prosecution. And yes, as others have said, an acquittal would be absolutely the worst possible outcome. The D’s shooting off their mouths are helping the defense

  12. Jt says:

    Republican corruption has become full out criminality and without consequences we allow them to become Putin and destroy every freedom we fought for!

  13. Tlaloc says:

    Couldn’t disagree more with your first * footnote (for some reason I can’t copy and paste it here).

    One of those “on the outs” republicans serving on the committee was until very recently in their party leadership. That ABSOLUTELY makes this not a democratic committee but bipartisan vy any meaningful criteria.

  14. Tlaloc says:

    There’s nothing inappropriate or muddling about congress goading the DoJ to act when the crime they are asking the DoJ to act on is contempt of Congress. The DoJ treating that seriously is a necessity for the Congress to be able to execute the oversight duties with which they are constitutionally empowered.

    Garland not doing his job means he is causing a constitutional crisis, not Congress.