Investigate Them
The DOJ must examine the
roles of government officials, including former President Donald Trump, in the
Capitol insurrection. To look away is fantastically dangerous.
JANUARY 6, 2022
About the author: Neal K. Katyal is the former Acting Solicitor
General of the United States and a professor of law at Georgetown University.
In the year since the
Capitol, and American democracy, was savagely attacked, the beloved institution
where I worked during earlier parts of my career, the Department of Justice,
has been eerily silent on many events of that day. True, the department has
done a terrific job at prosecuting some of the
rank-and-file attackers, but thus far it has made no peep about investigations
into former President Donald Trump, let alone his coterie of enablers, such as
the former DOJ official Jeffrey Clark and former White House Chief of Staff
Mark Meadows, or his ostensible attorneys, John Eastman and Rudy Giuliani. This
investigation into high-level wrongdoing is the greatest test an attorney
general could face. And right now, despite what he said in yesterday’s
generally good speech, it is worth worrying about whether Merrick Garland is
failing that test.
Caveats abound.
Perhaps Garland’s critics have it wrong, and the silence about whether he is
investigating Trump and his enablers is actually evidence of his supreme
competence. Garland dropped hints in his speech yesterday that could suggest
the existence of such an investigation, for example, when he said the
department “remains committed to holding all January 6 perpetrators, at any
level, accountable.” We are talking about a legendary public servant, someone
who steered the Oklahoma City–bombing investigation to
success as a Justice Department lawyer and later, in his two decades serving on
our nation’s second-highest court, was never reversed once by the Supreme
Court. Criminal investigations are generally secret, and perhaps what is going
on is that Garland has proceeded apace, just not publicly. If so, the critics
are premature, and Garland is doing exactly what he is supposed to do.
But what if that
isn’t right? There is so far zero evidence of an actual investigation into
Trump and his advisers. It’s been an entire year, and the governing U.S. Attorney’s Manual, which establishes the rules for federal
prosecution, says, “When the community needs to be reassured that the
appropriate law enforcement agency is investigating a matter … comments about
or confirmation of an ongoing investigation may be necessary.” Moreover, if
such an investigation were happening, it is likely that we would have learned
of it by now, either through leaks or an interviewee saying something (or
someone trying to block the inquiry through a public lawsuit, as the Trumps
have done in New York). Law-enforcement officials know you can’t easily start
such interviews a year or more after the fact—evidence disappears (a known
issue with Trump folks) and memories fade. So it is very much worth worrying
about whether the caution Garland cultivated as a judge—for you don’t sit on
the nation’s second-highest court for two decades and avoid reversal without a
heaping amount of caution—is driving his decision making today. If so, what
would be the harm in “moving on” from what happened, as many top Republicans have argued?
Here’s the harm: The
essence of the rule of law is to treat like parties equally. That’s why Lady
Justice appears blindfolded, because she is to dole out justice impartially. I
teach my criminal-law students that this is a “same yardstick” principle—what
law is, at bottom, is a command to judge people according to the same
yardstick, whether you like them or not. And that means that if there is
serious evidence of crime, you don’t look the other way, no matter how hard
prosecution may be. At the same time, that principle doesn’t mean Garland ought
to be announcing criminal charges against Trump and his pals right now. Merrick
Garland is the attorney general, not Santa Claus. It merely means that people,
including high-ranking government officials, need to be interviewed and
documents examined to determine whether probable cause exists. The yardstick
principle asks us to pretend that those responsible were Democrats, and to use
that thought experiment to decide whether an investigation is warranted.
When
it comes to January 6, Attorney General Garland must realize that this
yardstick points in a clear direction. As one senior government official put it, “There is
no question—none—that President Trump is practically and morally responsible
for provoking the events of the day. No question about it. The people who
stormed this building believed they were acting on the wishes and instructions
of their President … The leader of the free world cannot spend weeks thundering
that shadowy forces are stealing our country and then feign surprise when
people believe him and do reckless things.”
Moreover, given the
public record already available—including evidence of “war rooms” at the Willard Hotel, bogus legal
memos that circulated among senior government leaders, and even
a member of Congress who is known to have worn body armor that day—it’s very hard to see how an
investigation into all of this wouldn’t be required. To fail to investigate
government officials, including the former president, who had to know that the
attempt was to interfere with the counting of the vote, to say nothing of its
potential for accompanying violence, is fantastically dangerous. The whole
point of criminal law is to provide societal condemnation of evil acts and to
deter them in the future. If government leaders and their private army of
advisers can get away with encouraging a mob to, in 2021, stop one of our
nation’s most solemn functions, the counting of electoral votes, what is to
stop them from trying again in any other year?
Fortunately, criminal
law provides serious sanctions for such behavior. It’s a crime, punishable by
20 years in jail, if someone “corruptly … impedes any
official proceeding, or attempts to do so.” That’s just one of several possible
laws at issue, but this one happens to have been upheld already by three
different federal judges in criminal cases of those who attacked the Capitol on
January 6. Two of those three judges were appointed by Trump.
The special committee
in Congress examining these events can of course bring certain facts and
behavior to light. But Congress is a poor man’s substitute for the awesome
investigatory powers of the Justice Department. The DOJ’s prosecutors and
agents know exactly how to conduct a criminal investigation, and have an array
of law-enforcement tools available to them. And though Justice Louis Brandeis
was right about sunlight being a disinfectant, when the microbes attack our
democratic lifeblood—the functioning of elections—mere transparency is not
going to be enough. It will take jail.
Our political system
is based on the belief that an elected leader would not abuse their powers to
stay in office. Entire fields of law are governed by the idea that government
officials should not be second-guessed, and that their actions are presumed to
be regular and entitled to deference. For the first 233 years of our republic,
that view largely made sense, as presidents didn’t attempt to gain office
through trying to nullify the public’s votes. But a world in which presidents
do that sort of thing is markedly different: It allows someone to
wrongfully gain the presidency, and then to wield the very same massive set of
powers as their predecessors. That is why this investigation is so different
from any other. Nothing less is at stake than protecting the architecture of
the U.S. government. Right now, members of Congress who look complicit in the
January 6 attack are refusing to cooperate with the congressional
investigation, emboldened by their belief that there is no serious risk of
Justice Department prosecution. A DOJ investigation would change that. It speaks
to Attorney General Garland’s character that he has handled the investigation
with so much tact. But we are at a national crossroads. If Garland doesn’t
speak out about the investigation’s scope, the other guys will.
Oh, that senior
public official who said there was “no question” about Trump being “practically
and morally responsible” for the January 6 attack? His name is Mitch McConnell.
And although he voted to acquit Trump of impeachment, he said that vote was
solely because of his belief that Trump, as a former president, could not be
impeached under our Constitution. But, he said, “President Trump is still liable for
everything he did while he was in office, as an ordinary citizen … He didn’t
get away with anything yet—yet. We have a criminal justice system in this
country.”
It’s now up to
Merrick Garland to run a criminal investigation to make sure that Trump and his
advisers don’t get away with anything ever—ever.
Neal K. Katyal is the former Acting
Solicitor General of the United States and a professor of law at Georgetown
University.