SETH ABRAMSON ON GARLAND’S WEAK AND EMPTY SPEECH
1/ First, it's important to understand that—separate from criticisms DOJ has received from lay members of the public—the criticism Garland has received from attorneys and legal analysts like me *isn't* that he hasn't charged any high-level coup plotters yet. That's not the issue.
2/ Attorneys, legal analysts, and criminal investigators know that the federal criminal justice system moves much slower than state criminal justice systems—and the more complex and historic the case, the *slower* it moves. This was always a given in the January 6 investigation.
3/ By the same token, attorneys, legal analysts, and criminal investigators always expected that DOJ would follow its usual policies of (a) not commenting publicly on ongoing investigations, and (b) using cooperation deals with lower-level defendants to try to get at bigger ones.
4/ But what attorneys, legal analysts, and criminal investigators *also* know is that it's *impossible* to hide a large-scale federal probes completely. There are subpoenas, raids, document demands, court filings, interrogations, and more that are hard—or even impossible—to hide.
5/ Some of these investigatory events can't be hidden because they happen at least marginally in public (e.g., filings, raids and contested subpoenas). But it's also impossible to hide a large-scale federal probe because of (a) leaks, and (b) voluntary disclosures from witnesses.
6/ Rich, powerful, well-connected Trumpists in particular are infamous for howling into the nearest microphone the second they are treated as any other suspect, witness, or defendant in America would be treated. Indeed their cowardice and hypocrisy have long been defining traits.
7/ So while AG Garland pretended in his speech that the substantive criticism DOJ is facing comes from people angry that Trump and his January 6 co-conspirators haven't been charged with anything yet, he knows that this is *not* the criticism coming from those in the legal field.
8/ Instead, the criticism DOJ is facing that matters most—criticism that comes from those who understand how criminal investigations and prosecutions work—is that there is *no evidence whatsoever* that DOJ is conducting *any* large-scale investigation of high-level coup plotters
9/ We have seen no court filings from DOJ to this effect. No cooperation deals. No raids. No subpoenas. No document demands. No device seizures. No interrogations. No howling from powerful Trumpists that they are being "targeted" simply for being... seditious insurrectionists.
10/ The conspiracy charges Garland spoke of
today haven't led to cooperation deals that could reach Trump or top-tier
agents—and we already know the names of 15-20 who helped coordinate what
happened on January 6—and this failure lies in the shadow of DOJ's Trump-Russia
failures.
11/ Moreover, one thing current or former federal criminal investigators like me know is that there's a *time* value in *all* investigations—and that testimonial evidence from cooperators is only *one type* of evidence. Even if such secret deals have been cut, it *isn't enough*.
12/ What Robert Mueller declared on pg. 10 of his first Trump-Russia report was that Trumpists had hidden and destroyed evidence, rejected all requests for cooperation, and obstructed his probe to the point that he couldn't possibly know if he had anything like all the evidence.
13/ But Garland didn't need Mueller to tell him that when dealing with Trumpist criminals you must get testimony and evidence—documentary, trace, material and otherwise—as quickly as possible, lest it be destroyed even as false testimony is encouraged, concocted and synchronized.
14/ Trumpists criminals aren't much different from *other* white-collar criminals—they don't believe the law applies to them and will tamper with, hide, destroy, miscast and otherwise pervert evidence (testimonial or physical) with a sense of impunity. So he needed to act *fast*.
15/ So the push from those in the legal field for DOJ to quickly demonstrate a commitment to pursuing high-level targets was *not* about partisan politics or a desire for emotional catharsis. It was about how you investigate cases and pursue rich, powerful, influential criminals.
16/ In his speech today, Garland uttered only *one line* relevant to *these* concerns expressed by his peers in the legal community. And it was thin gruel, indeed. He said that DOJ would pursue individuals who were "not present" at the Capitol. That "revelation" only goes so far.
17/ Our criminal justice systems—that is, at both the federal and state levels—find it *much* easier to charge poor and middle-class people with easily documented crimes than it does to charge rich people with inchoate crimes and behind-the-scenes crimes like criminal conspiracy.
18/ And indeed our criminal statutes are *written* by the very class of people with the most desire to protect rich folks with enough money—and power/influence—to get *others* to commit the most visible components of their crimes: politicians. Politicians like, say, Donald Trump.
19/ In the case of January 6, the middle-class/working poor agents of Trump and his cabal had a class of interlocutors between them and Team Trump's scions—a class of persons composed of Proud Boy, Oath Keeper, and Stop the Steal leaders. Some weren't at the Capitol on January 6.
20/ So when Garland speaks of potentially prosecuting some who "weren't present at the Capitol," he may simply be referring to this intermediate class of persons who are merely glorified domestic-terrorist thugs rather than Team Trump's leading organizers. It's impossible to say.
21/ What we *can* say, virtually for certain, is that as with the Mueller investigation, Garland has missed his window to get considerable physical evidence and untampered-with testimonial evidence, and has given the coup plotters ample time to concoct and synchronize their lies.
22/ What we *can* say, again virtually for certain, is that Garland is failing to get the cooperation deals he needs to get at Trump and his lieutenants, and that he's let Trump and his agents tamper with witnesses—and destroy evidence—*just* as they did in the Trump-Russia case.
23/ So when AG Garland loftily declares (in euphemistic terms) that his detractors are *only* upset because (a) they don't understand how investigations and prosecutions work, and (b) they are merely looking for the catharsis of seeing Trump in chains, that is absolute *hogwash*.
24/ I don't question Garland's values. The ones he expressed in his speech are ones I share; I'm glad he expressed them. But our criminal justice system is broken—as anyone who has worked in it knows—and one reason is because *institutional will* to pursue our values is lacking.
25/ In short, we let talking about values take the place of acting on them, and let a culture persist that undermines our values because it seems decorous and doesn't upset those who hold DOJ's purse-strings. Prosecutors don't worry about any of this stuff when pursuing the poor.
CONCLUSION AG Garland's speech was as
empty as legal analysts expected it would be—full of entirely proper ideals
that DOJ is not living up to where the rubber meets the road. But Garland made things worse by
miscasting criticism of the Department. What he could have done and consistent
with DOJ policy to boot, was be more specific about the *types* of criminal
offenses necessary to any coup or self-coup that DOJ is committed to pursuing. Of
course, he wasn't going to mention names—nor should he have—but he could have
said that a conspiracy to obstruct Congress can be conducted well in advance of
the actual obstruction of Congress; that election fraud does not require a
physical manipulation of ballots; and that foreknowledge and inducement of
crimes can constitute aiding and abetting. And he could have done something to
explain *why* the public sees *no* indications of investigative activity
regarding high-level coup planning, when in *every* other major federal case in
the last 25 years we have seen *some* indicators of the types I've described. Had
he done these things—and framed them in the context of stating that an
investigation of such historic complexity *can* take years (though he needn't
promise it)—and can't run on any timeline but a proper investigative/legal one,
it might have been a good speech.