Mandel Ngan AFP/Getty Images
The Justice Department’s decision to charge Oath Keepers with seditious conspiracy last week makes clear that prosecutors consider the Jan. 6 attack on the Capitol part of an organized assault to prevent the peaceful transfer of presidential power.
But so far the department does not appear to be directly investigating the person whose desperate bid to stay in office motivated the mayhem — former president Donald Trump — either for potentially inciting a riot or for what some observers see as a related pressure campaign to overturn the results of the election.
The House select committee on Jan. 6 is investigating both matters, separate from the Justice Department, and has aggressively pursued information about Trump and those closest to him. But FBI agents have not, for example, sought to interview or gather materials from some of Trump’s most loyal lieutenants about their strategy sessions at the Willard hotel on how to overturn the results of the 2020 election, according to participants in those meetings or their representatives.
The department has not reached out to the Georgia secretary of state’s office about Trump urging its leader to “find” enough votes to reverse his defeat, a person familiar with the office said, even as a local district attorney investigates that matter.
The Trump campaign has not received requests for documents or interviews from the FBI or Justice Department related to Jan. 6 or the effort to overturn the election results, and federal prosecutors have not sought to interview those with knowledge of Trump’s consideration of a plan to install an attorney general more amenable to his unfounded claims of massive voter fraud, according to people familiar with the matter. The Justice Department inspector general is investigating the aborted plan and could ultimately ask prosecutors to consider whether crimes were committed.
Attorney General Merrick Garland has vowed to hold accountable all those responsible for the Jan. 6 riot — whether they were at the Capitol or committed related crimes. “The actions we have taken thus far will not be our last,” Garland said in a Jan. 5 speech marking the anniversary of the Capitol breach.
But some legal analysts say they worry Garland might be moving too cautiously.
“The other shoe has yet to drop — that is: When will the Justice Department promptly and exhaustively investigate the part of the coup attempt that I believe came perilously close to ending American constitutional democracy, basically, without a drop of blood?” said Harvard Law School Professor Laurence Tribe, a constitutional scholar and outspoken Trump critic.
A spokesman for the D.C. U.S. attorney’s office, which is leading the criminal investigation, declined to comment. A spokesman for Garland pointed to the recent speech, in which the attorney general said the department would “follow the facts” and “must speak through our work.” A spokesman for Trump did not respond to requests for comment.
[Capitol insurrection: The enduring images of Jan. 6]
Carolyn Kaster
AP
Attorney General Merrick Garland looks at a monitor showing Justice Department employees as he finishes speaking at the Department of Justice in Washington on Jan. 5.
A difficult case
Most analysts — even those who want more aggressive action — acknowledge that building a viable criminal case against the former president would be challenging.
Investigators might consider exploring whether the president criminally incited the crowd that ultimately marched to and stormed the Capitol on Jan. 6 when he said at the rally preceding the riot: “And if you don’t fight like hell, you’re not going to have a country anymore.”
But such speech could be considered protected by the First Amendment, and Trump is hardly the first politician to call on his supporters to fight.
While Trump told the crowd to march to the Capitol and vowed to join them — even though he had no plans to do so — there is no evidence that he knew they planned to storm the building.
Investigators might also consider whether Trump’s pressure on Georgia’s secretary of state to “find” votes for him — combined with other legal and legislative maneuvering to prevent his loss from being finalized — was part of a criminal conspiracy to impede government functioning. But if Trump genuinely believed the election was stolen from him, it would be hard to construe his contesting the outcome as a crime.
“We better be real careful that we don’t start taking political and emotional comments by public figures and try to turn them into the stuff of criminal prosecutions,” former federal prosecutor James Trusty said.
[Before, during and after the Capitol breach: A Washington Post investigation]
Brendan Smialowski
AFP/Getty Images
Then-President Donald Trump arrives to speak to supporters from the Ellipse near the White House on Jan. 6, 2021.
Almost from the investigation’s outset, Justice Department officials have debated how to proceed in the sprawling and politically sensitive case.
At first, according to people familiar with the matter, a few prosecutors in the D.C. U.S. attorney’s office wanted to use subpoenas and search warrants to go after records of some rally organizers or speakers.
But the FBI, Justice Department officials and Michael R. Sherwin — who was appointed as the D.C. U.S. attorney during the Trump administration and continued to lead the probe after stepping down from that post — resisted the idea, arguing that they would be trampling on demonstrators’ First Amendment rights, the people said.
Instead, the Justice Department decided to investigate those who were caught on video committing crimes, and see whether they could connect them to higher-level targets.
Prosecutors have so far charged more than 725 people for their roles in their attack, and FBI agents are seeking about 200 more. Although most were not part of planned conspiracies or members of far-right groups, the department has uncovered some more sophisticated plots.
Perhaps most significantly, the FBI on Thursday arrested founder and leader of the extremist group Oath Keepers Stewart Rhodes, charging him and 10 others with seditious conspiracy. It is the first time prosecutors brought sedition charges in the investigation, even though the D.C. U.S. attorney’s office prepared a memo almost a year ago detailing how such a case could be made.
[Stewart Rhodes is charged with ‘seditious conspiracy.’ What does that mean?]
Karen Jacobi
Oath Keepers founder Stewart Rhodes stands in front of Magistrate Judge Kimberly C. Priest Johnson in federal court in Plano, Tex., on Jan. 14.
Prosecutors alleged that Rhodes and his associates planned to stop the transfer of power to President Biden, and armed themselves with weapons and combat gear as they came to Washington from across the country. Analysts said prosecutors will surely use the serious charge to try to persuade Oath Keepers to cooperate in the investigation.
The indictment suggests Rhodes was mindful of what Trump was saying on Jan. 6, although Rhodes appeared to be frustrated by it.
“All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough,” he wrote to a group chat that day, according to the indictment.
Jonathan Moseley, who has been representing Rhodes, said his client had been scheduled to testify before the Jan. 6 House committee next month but now wouldn’t be doing so.
“They’re not going to get their interview or their documents,” he said. “This is sort of a collision between these two inquiries.”
Moseley said he has no indication of whether the Justice Department investigation is headed toward Trump but said Rhodes’s arrest was notable because he had not been inside the Capitol.
“That line has been crossed,” Moseley said.
Harry Litman, a former deputy assistant attorney general, said the indictment of Rhodes, who maintains he is innocent, was a significant step. But “whether they can do the hop, skip and jump from there to the Oval Office remains to be seen,” Litman said.
Rob Jenkins, a defense attorney representing multiple people linked to the Oath Keepers and Proud Boys, another far-right group, said prosecutors have been “pretty aggressive” in “seeking out information … that points to others’ involvement and culpability.”
They are interested, he said, in “preplanning, and participation in those preplanning on the part of the individuals who may not have come to D.C. on Jan 6 but were certainly part of the planned effort.” That includes both leaders in the groups and people who spoke at the rally on Jan. 6, including close Trump allies Rudy Giuliani and Roger Stone, he said.
“There was a lot of talk,” Jenkins said. “But I haven’t seen anything that would make them criminally liable.”
Stanley Brand, a former U.S. House counsel who now represents some Jan. 6 witnesses and defendants, said the approach is standard.
“Like all Department of Justice investigations, they begin at the lower rungs,” he said. “But the difference here is the lower rungs are as wide as the ocean, and there’s no evidence yet of them investigating much above that.”
Jabin Botsford
The Washington Post
Then-President Donald Trump's recorded message to rioters is seen on a television screen in the White House briefing room as supporters are removed from the Capitol building, on Jan. 6, 2021, in Washington, DC.
Pressure to do more
Critical to any investigation would be gleaning Trump’s intentions, analysts said. Did his failure to immediately and forcefully tell rioters to stand down once they attacked police and breached the Capitol indicate that he meant his words to spark violence?
Did he already know he had lost when he pressured Vice President Mike Pence to reject electoral votes on the House floor or when he urged Georgia’s secretary of state to find Trump votes?
“The key in pretty much all these crimes would be proving corrupt intent, because Trump is going to come in and say, when he was pressuring Pence, ‘I was told by my advisers that he had this legal authority, and I was just repeating that.’ And that could be difficult to overcome,” former federal prosecutor Randall Eliason said.
Many of those whose conduct might be at issue in a Trump-focused probe said they had yet to be contacted by federal prosecutors. Some seemed skeptical there was cause to do so.
A person directly involved in planning the rally, for example, said they had received no FBI or Justice Department requests, despite having spent six hours taking questions about the matter before the House committee that is separately investigating the riot. The person spoke on the condition of anonymity to protect their privacy.
A Pence aide said the former vice president’s office had received no FBI or Justice Department outreach. At least 11 former campaign and White House aides — including seven who have been in touch with the Jan. 6 House committee — said they had received no inquiries from the Department of Justice.
[Willard hotel was a Trump team ‘command center’ for effort to deny Biden the presidency]
Matt McClain
The Washington Post
Supporters of then-President Donald Trump pose in front of a bus parked in front of the Willard hotel as people gather at nearby Freedom Plaza on Jan. 5, 2021, to protest the election results.
Former New York City police commissioner Bernard Kerik, who was among those at the Willard hotel “command center” where Trump allies plotted strategy to bring about a second Trump term, told The Washington Post he had “no DOJ contact.”
“I wasn’t involved in January 6. I don’t know anything about the Capitol, and nobody’s contacted me about it,” he said.
John Eastman — a lawyer who spoke at the rally on Jan. 6 and had outlined scenarios for denying Biden the presidency in a meeting days earlier with Trump and Pence — said he had not heard from the Justice Department, either. If other rally speakers were contacted by the department, he said, “they really would be going after people’s perfectly valid, constitutionally protected First Amendment rights.”
That the Justice Department has yet to turn its attention directly to Trump and his close allies does not mean it never will, and analysts note that much could be happening in secret. Investigators could seek communication records of those at the Willard hotel from phone or email providers, for example, in such a way that those whose records are at issue never found out.
Eliason said prosecutors also might have good reason for waiting to seek interviews with high-profile, politically connected officials. “If you just go in and talk to them cold in the first month of the investigation, they’re not going to tell you anything,” he said.
The department, though, has faced pressure to do more, including the possibility of criminal referrals from the House committee.
[Jan. 6 committee says tech companies not cooperating, issues subpoenas]
Last month, Tribe and two former federal prosecutors wrote a New York Times opinion piece saying Garland’s “place in history” would be determined by his handling of the Jan. 6 investigation.
“That means dissuading future coup plotters by holding the leaders of the insurrection fully accountable for their attempt to overthrow the government,” the group wrote. “But he cannot do so without a robust criminal investigation of those at the top, from the people who planned, assisted or funded the attempt to overturn the Electoral College vote to those who organized or encouraged the mob attack on the Capitol.”
On Thursday, Michigan’s attorney general told MSNBC she had called on federal prosecutors to investigate a group of Republicans who submitted a fake certificate claiming they were the state’s presidential electors.
The state had been looking into the matter for months, and state officials have been interviewed about it by counsel to the congressional Jan. 6 committee. But there has been no outreach from the Justice Department, state officials said.
Garland’s public vow to hold accountable all those responsible for Jan. 6 allayed the concerns of some who had been pushing for more aggressive investigation. Donald Ayer, a former deputy attorney general who co-authored the New York Times column with Tribe, said he still felt it was “very important that the Justice Department be focused on investigating the upper-level people, as well as the people who were present on Capitol Hill that day, people that organized it, people that funded it.”
Of Garland, he added: “I’m prepared to wait and see what he does, believing that he’s going to do what he said he’s going to do.”
Tribe said he remained “somewhat disappointed” in Garland’s caution, though he was heartened by the indictment of Rhodes.
“It’s a virtuous characteristic in an attorney general, and it will serve him well if — contrary to current appearances — he manages to come to a conclusion in time,” Tribe said. “But the very great danger, and it grows with every passing hour, is that the clock will run out.”
Devlin Barrett and Spencer S. Hsu contributed to this report.
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