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Why Hasn’t Attorney General Merrick Garland Indicted Donald Trump For The January 6th Insurrection?

That’s the big question everyone keeps asking, right? 

The New York Times

When it comes to Jan. 6, Justice Department officials emphasize that their investigation has produced substantial results already, including more than 775 arrests and a charge of seditious conspiracy against the leader of a far-right militia. More than 280 people have been charged with obstructing Congress’s duty to certify the election results.

And federal prosecutors have widened the investigation to include a broad range of figures associated with Mr. Trump’s attempts to cling to power. According to people familiar with the inquiry, it now encompasses planning for pro-Trump rallies ahead of the riot and the push by some Trump allies to promote slates of fake electors.

The Justice Department has given no public indication about its timeline or whether prosecutors might be considering a case against Mr. Trump

(snip)

Still, there is unrelenting pressure from Democrats to hold Mr. Trump and his allies accountable for the violence that unfolded at the Capitol on Jan. 6. While there is no indication that federal prosecutors are close to charging the former president, Mr. Biden and those closest to him understand the legal calculations. What Mr. Garland is confronting is anything but a normal problem, with enormous political stakes ahead of the next presidential election.

President Joe Biden shares your frustration with the holdup…

Business Insider

President Joe Biden privately said that former President Donald Trump should be prosecuted over the January 6 insurrection at the US Capitol, The New York Times reported on Saturday.

(snip)

Biden has reportedly grown frustrated with US Attorney General Merrick Garland, who is investigating the riot, according to people close to the president. The president has described Garland as a “ponderous judge” and said he wants to see him take more “decisive action” regarding the Capitol siege, according to The Times.

However, per the report, Biden has never articulated his frustrations about the January 6 cases directly to Garland.

Last week a federal judge concluded that Trump likely committed a crime…

Associated Press

A federal judge on Monday asserted it is “more likely than not” that former President Donald Trump committed crimes in his attempt to stop the certification of the 2020 election, ruling to order the release of more than 100 emails from Trump adviser John Eastman to the committee investigating the insurrection at the U.S. Capitol.

The ruling by U.S. District Court Judge David Carter marked a major legal win for the House panel as it looks to correspondence from Eastman, the lawyer who was consulting with Trump as he attempted to overturn the presidential election.

“Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” Carter, who was nominated by former President Bill Clinton, wrote in the ruling submitted in the federal Central District of California.

Eastman was trying to withhold documents from the committee on the basis of an attorney-client privilege claim between him and the former president. The committee responded earlier this month, arguing that there is a legal exception allowing the disclosure of communications regarding ongoing or future crimes.

One explanation for the lack of an indictment is of course the missing evidence…

Associated Press

[F]or all that is known about the day, piecing together the words and actions of Donald Trump over that time has proved no easy task, even though a president’s movements and communications are closely monitored.

There’s a gap in the official White House phone notations given to the House committee investigating Jan. 6 — from about 11 a.m. to about 7 p.m., according to two people familiar with the congressional investigation into the riot. Details may still turn up; the former president was known to use various cell phones and often bypassed the White House switchboard, placing calls directly.

And over the past four-plus months a lot has surfaced about what Trump did do and say on Jan. 6 — in texts, tweets, videos, calls and other conversations.

There are also unanswered questions about what went down at the Willard Hotel…

The Washington Post

They called it the “command center,” a set of rooms and suites in the posh Willard hotel a block from the White House where some of President Donald Trump’s most loyal lieutenants were working day and night with one goal in mind: overturning the results of the 2020 election.

The Jan. 6 rally on the Ellipse and the ensuing attack on the Capitol by a pro-Trump mob would draw the world’s attention to the quest to physically block Congress from affirming Joe Biden’s victory. But the activities at the Willard that week add to an emerging picture of a less visible effort, mapped out in memos by a conservative pro-Trump legal scholar and pursued by a team of presidential advisers and lawyers seeking to pull off what they claim was a legal strategy to reinstate Trump for a second term.

They were led by Trump’s personal lawyer Rudolph W. Giuliani. Former chief White House strategist Stephen K. Bannon was an occasional presence as the effort’s senior political adviser. Former New York City police commissioner Bernard Kerik was there as an investigator. Also present was John Eastman, the scholar, who outlined scenarios for denying Biden the presidency in an Oval Office meeting on Jan. 4 with Trump and Vice President Mike Pence.

Also in question is whether individuals at the Willard coordinated with the defendants already indicted for conspiracy…

Rolling Stone

The House select committee investigating the Jan. 6 attack on the U.S. Capitol building has been examining the role far-right militant groups played in efforts to overturn President Trump’s election loss and the violence that erupted that day. As part of the investigation, the committee has obtained footage of Proud Boys leaders — including four minutes that may contain audio of a key meeting — and testimony linking the right-wing group First Amendment Praetorian to the organizers of the Jan. 6, 2021, rally on the White House Ellipse, where Trump urged the crowd to “fight like hell” as his defeat was being certified at the Capitol.

(snip)

Federal prosecutors described the parking-garage meeting in an indictment against Tarrio and other Proud Boys leaders that charged them with conspiracy related to the Jan. 6 attack. According to that indictment, the meeting took place after approximately 5 p.m. on Jan. 5, 2021, when Tarrio was released from jail after having been arrested the day before on charges related to the destruction of a Black Lives Matter banner during a previous pro-Trump rally. Prosecutors alleged Tarrio met with Rhodes and other unnamed individuals in an underground garage near the Phoenix Park Hotel, which is located roughly a half mile from the Capitol.

Republican lawmakers are no help, they consider the entire enterprise a witch hunt…

Washington Monthly

It is a sacred tenet of democracy that the judicial and prosecutorial processes must be independent of political pressure. These decisions must be made as objectively as possible.

(snip)

…Republican elected officials are lobbing heavy threats at both the DOJ and Democrats, insisting that prosecuting Trump over January 6 (or anything else) would be seen as a political act—and that they would seek revenge. Their anger is particularly directed toward the House January 6 committee, which concluded that there is adequate evidence to implicate Trump and several of his allies in serious crimes.

(snip)

…Republicans themselves blocked the normal accountability mechanisms under the Constitution from applying to Trump. They did so for political reasons ranging from venality to cowardice. When Republicans had the chance to convict Trump for the high crime of attempting to extort Ukrainian President Volodymyr Zelensky—by threatening to withhold weapons from Ukraine in exchange for Zelensky framing his domestic political opponent, Joe Biden—the GOP refused. Republicans had the chance to convict Trump of the high crime of leading an attempted coup on January 6, 2021, and prevent him from seeking the presidency again. They again refused. It is precious to claim that a congressional investigation of the former president and his advisers is an untoward political act when it was the Republican political act that neutered the constitutional mechanisms of accountability, namely impeachment.

Complicating matters is ambiguity about which laws can be applied to a President…

Lawfare Blog

…[I]f there is no ongoing Justice Department activity with respect to Trump’s conduct under either § 1512(c)(2) or § 371, that may well be because the Justice Department’s own interpretation of the law of the application of criminal statutes to the president makes prosecuting the president difficult—or because the department simply hasn’t made a final decision yet on how the legal principles intersect. If this is correct, Judge Carter’s opinion will likely change nothing.

(snip)

In other words, while the question before Judge Carter was whether it is more likely than not that Trump violated these two statutes as best interpreted, the question before the Justice Department (unless Attorney General Merrick Garland is willing to reopen decades of OLC precedent) is whether Trump may have violated either of them given that both “must be read as not applying to the President if they do not expressly apply where application would arguably limit the President’s constitutional role.” While this additional interpretive baggage does not constrain Judge Carter, the Supreme Court decisions that lie beneath it do. Without the benefit of briefing on those decisions that, in the Justice Department’s view, give rise to the clear statement rule, Judge Carter is working with the statutes in a somewhat simpler form than the Justice Department confronts them.

(snip)

Again, my point here is not that this view of the law is correct. My point is only that the Justice Department accepts some version of the clear statement rule, which thus creates a hurdle for the department in contemplating a prosecution of Trump based on the shameful fact pattern that Judge Carter’s opinion lays out. It’s a hurdle that Carter himself did not confront.

Although Trump’s assertion of executive privilege has been thwarted at every turn, it has taken up substantial time and resources…

Lawfare Blog

The Supreme Court Wednesday evening denied a motion by former President Trump to block the National Archive from turning White House materials to the House Select Committee on the January 6 Attack. The peculiar, four-page order, is a complicated document, but in combination with the broad and underdiscussed D.C. Circuit opinion it leaves in place, it has profound implications for Trump’s ability, and that of his allies, to make executive privilege claims in response to demands for testimony and information from the committee.

On its face, the Supreme Court’s order yesterday appears to mitigate the consequences for Trump of a D.C. Circuit opinion that rejects a number of his key claims in resisting the committee. The D.C. Circuit opinion has been hanging around since early last month with little notice or discussion—probably because the Supreme Court was poised to jump in any time. But in fact, the Supreme Court action does not mitigate the matter for Trump.

Put simply, the former president, whether he knows it or not, is now in a dramatically weaker position than he was only recently with respect to the committee. The new legal landscape, for example, almost certainly means that two top Trump officialsformer White House Chief of Staff Mark Meadow and former top adviser Steve Bannoncan no longer argue that the privilege prevents them from cooperating with the committee. The same applies to other potential witnesses, and to the former president himself, should the committee seek his testimony. All, of course, may well continue to resist anyway—but if so, they proceed at much greater risk to themselves.

Merrick Garland cannot bring charges on his own. Felony indictments must come from a federal grand jury. The process itself likely indicates why news is so scarce…

DOJ: Witness and Grand Jury Secrecy

To guarantee the secrecy of grand jury hearings, Federal Rule of Criminal Procedure 6(e) prohibits most persons persent during the proceedings from disclosing what transpired inside the grand jury room; however, the proscription does not apply to witnesses. Under a plain reading of Rule 6(e), witnesses have an unfettered right to reveal the contents of their testimony to any third party. Still, a section of the U.S. Attorneys’ Manual suggests a means of subjecting certain categories of witnesses to secrecy obligations. Moreover, while not restricting witnesses directly, several Federal district courts have limited the right of attorneys to contact grand jury witnesses. Further, at least one district court has actually imposed an obligation of secrecy on grand jury witnesses. By shrouding grand juries in total secrecy, targets are often unable to learn the direction of the investigation, rendering them incapable of presenting exculpatory evidence. Instead, the indictment is based on the evidence the prosecutor chooses to present to the body. Removing witnesses from the veil of secrecy to some degree lessens the control of the prosecutor by allowing targets some opportunity to learn the direction of the investigation and present exculpatory evidence. Efforts to prevent this practice can only further remove the grand jury proceedings from the original intention of protecting citizens from governmental harassment and place them entirely under the prosecutor’s control. A total of 108 footnotes are provided.

There are substantial hurdles the Attorney General and Department of Justice must clear… The ongoing obstruction being perpetrated by the criminals involved is likely the highest one.

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This is a Creative Commons article. The original version of this article appeared here.

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