Jurisprudence

The DOJ Finally Seems to Be Moving Toward a Trump Investigation

Donald Trump looks stern in an overcoat standing at the Ellipse with a row of American flags behind him
Donald Trump on Jan. 6, 2021. Brendan Smialowski/Getty Images

Despite Donald Trump’s genius for evading responsibility, this was the week that we learned that federal criminal investigators might finally actually be focusing on his inner circle and even approaching the vicinity of investigating the former president himself. The Washington Post reported on Wednesday that the Justice Department is looking beyond those who participated in the Jan. 6, 2021, violence on Capitol Hill, or who directly supported the insurrectionists, and into the funding of the Trump-headlined rally that took place before the assault on the Capitol. That was followed quickly by the news that a grand jury has issued subpoenas seeking information about the false electoral slates that were part of the Trump campaign scheme to overturn the 2020 election.

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According to these reports, the Justice Department has now ventured into the circles around the former president. There’s no doubt, though, who the intended beneficiary of the Jan. 6 events or the false electoral slates was—or where the evidence, if properly followed as Attorney General Merrick Garland has promised to do, ultimately points. We have no confirmation that the man in the center is a subject or target of the federal investigation—but these and other recent developments suggest that is likely coming.

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Another important indicator of the rising prospects of a Trump probe is the finding of a California federal court this week that the former president likely committed federal crimes in the run-up to and on Jan. 6. Then there is the evidence of an extraordinary seven-hour gap in White House call records that raises the question of whether Trump sought to cover his tracks on his conversations that day. Ultimately, the violence on Jan. 6 was the inevitable culmination of the larger conspiracy to overturn the election that District Judge David O. Carter addressed.

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Together, these strands weave into the shape of a possible case against the former president. We know that the plan to appoint alternate electors for Trump in the swing states was circulating in the Trump campaign in November 2020. That idea came amid the first part of the effort to keep Trump in power. Think of it as plan A: overturn the election in the states. It included the 60-plus cases Trump allies brought in courts to try to negate Joe Biden’s victory.

As that plan began to fail, John Eastman, Peter Navarro, Steve Bannon, and other Trump advisers came on board with plan B: seeking to get Republicans in Congress, and particularly Vice President Mike Pence, to object to or delay certification of Biden’s victory. Even as that plotting proceeded, however, Trump strategists apparently foresaw that the Pence plan, like the court cases, was legally fraught and also might fail.

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That brings us to plan C: the use of force on Jan. 6 to intimidate Congress. As the New York Times reported on Tuesday, investigators are now focused on the then-president’s Dec. 19, 2020, tweet inviting his followers to D.C. for a rally that “will be wild.”

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Extremist domestic terrorist groups such as the Proud Boys, the Times reported, viewed the tweet as a call to action. Another extremist group, the Oath Keepers, began buying arms and making plans for an assault. (Disclosure: One of us is part of civil litigation against those groups.)

Investigating all phases of the scheme to keep Trump in power is certainly complex, which is perhaps why progress has appeared slow for those looking for accountability for the former president. As the House select committee has shown, the investigation involves hundreds of witnesses, thousands of documents, and innumerable leads to track and pin down. The DOJ investigations revealed this week, and the conspiracy Carter discussed, are sweeping.

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Still, time is of the essence, and if the DOJ is going to make progress, it needs to do so soon. That is why it has been so frustrating to see reports that in January 2021, before Biden was in office and Garland was confirmed as the new attorney general, the Trump administration–appointed U.S attorney for the District of Columbia chose to focus his investigation entirely on Jan. 6 itself and not look at the rally funders for fear of getting too close to First Amendment activity. That appears profoundly misguided: When a matter as serious as an insurrection is involved, responsible authorities cannot be gun-shy about taking the first steps to finding out whether there is any “there” there.

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For all the good news that the inquiry has proceeded to funders of the Jan. 6 rally and to events before Jan. 6 itself, we do not yet have confirmation of lines of inquiry we would expect. We have not, for example, seen confirmation that the DOJ is probing all aspects of the plot to overturn the election by manipulating the Electoral Count Act and pressuring Pence to break the law. Nor have we learned that the DOJ has interviewed or subpoenaed any of the “false electors” who signed bogus electoral slates fraudulently saying that they were the “duly elected” and official electors. That may be happening or may yet lie ahead. In either case, we expect to eventually learn of the DOJ’s decision one way or the other.

Finally, an investigation of the scope we’re envisioning needs massive funding and personnel to pursue a former president, and the DOJ appears to be seeking those resources. It is encouraging that this is happening alongside the parallel and complementary work of the House select committee and of others, such as Fulton County, Georgia, District Attorney Fani Willis. Critically, though, the signs of progress that are now emerging indicate that the attorney general was good on his word when he stated that he would follow the evidence wherever it leads.

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