Attorney General Merrick Garland vowed to hold all those responsible for the Jan. 6 riot accountable — whether they were at the Capitol or committed other crimes surrounding the day’s events — saying investigators are methodically building more complicated and serious cases and would prosecute people “at any level.”
Garland’s remarks came on the eve of the anniversary of the Capitol breach and as he faces intensifying pressure to do and say more about the investigation, and to focus more acutely on the actions of former president Donald Trump and his associates. Debate has raged on Twitter, television and newspaper editorial pages over whether Trump could be charged with a crime, and, if not, what that might mean for future transfers of power.
The attorney general did not name the former president or those close to him, and many of his statements were common-sense assurances that could be said of any investigation. Still, they seemed designed to address complaints that the department was not taking a broad enough view of possible crimes connected to Jan. 6, or looking at sufficiently high-profile targets, including Trump.
“We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases,” Garland said, adding later, “There cannot be different rules for the powerful and the powerless.”
Matthew Miller, who served as the top spokesman for Obama administration Attorney General Eric Holder, said observers should not take Garland’s speech as a signal that prosecutors have gathered significant evidence to help charge Trump.
“That is a statement that AGs give all the time about big investigations. I’ve written a version of that sentence before,” Miller said. “It’s true. If they have evidence to charge Trump with a crime, I’m sure they’ll do it. But you can also read into it whatever you want.”
A growing chorus of public officials, former military leaders and others has suggested Trump may have committed a crime by encouraging the rioters or pushing efforts to overturn the results of the election.
But some legal analysts say charges for Trump and others seem unlikely, given that public evidence has not pointed to a grand conspiracy that involved the president or his top allies directing rioters to breach the Capitol.
A Washington Post review of court records last year found that the vast majority of those charged federally were not known to be part of far-right groups or premeditated conspiracies to attack the Capitol. Instead, they were mostly everyday Americans, including community leaders and small-business owners, who appeared to believe Trump’s false claims of election fraud and gathered in Washington to protest or try to stop the congressional certification of Joe Biden’s victory.
“There’s no grand conspiracy that the FBI found, despite arresting hundreds of people, investigating thousands,” said Jonathan Turley, a George Washington University law professor.
In his speech, Garland sought to frame the Jan. 6 investigation — the biggest in the FBI’s history, in terms of the sheer number of defendants and suspects — in the larger context of criminal prosecutions, in which the severity of charges and jail sentences are based on the harm caused by specific conduct, and the speed with which individuals admit their guilt.
A number of federal judges overseeing such cases have publicly questioned prosecutorial decisions — wondering out loud whether the department was going too easy on some defendants, or criticizing department officials for saying too much publicly about the cases.
“In complex cases, initial charges are often less severe than later charged offenses,” Garland said, adding that in recent weeks “we have seen significant sentences that reflect the seriousness of those offenses — both in terms of the injuries they caused and the serious risk they posed to our democratic institutions.”
Federal prosecutors in D.C. announced last week that they have charged more than 725 people with assault, resisting arrest and other crimes in connection with the events of Jan. 6. About 165 people have pleaded guilty, the U.S. attorney’s office said.
The FBI is still seeking to identify and arrest more than 200 additional suspects from that day, including an individual who placed pipe bombs outside the Democratic and Republican national committee headquarters.
In his speech, Garland ticked through the damage the rioters inflicted: attacking officers with pipes, poles and chemical agents, and destroying journalists’ equipment. He read the names of five police officers who responded that day and have since died, and called for a moment of silence in their memories.
Stanley Brand, a former House counsel who represents some Jan. 6 defendants and witnesses, called the speech “vintage Merrick Garland, a classic discussion of criminal justice 101 and due process, which is what I would hope and expect, even though I’m representing some of these people.”
The speech was a “textbook explanation” of the prosecutorial system, Brand said. “This is the largest criminal investigation in the history of the United States, and a lot of it happens, like an iceberg, under the surface. That’s necessary, that’s our system.”
Garland’s speech also ventured beyond the events of Jan. 6. He spent significant time addressing threats against election workers and others, saying the Justice Department would prosecute those who make illegal threats but also would work within the bounds of the First Amendment.
“The department has been clear that expressing a political belief or ideology, no matter how vociferously, is not a crime,” Garland said.
He said the department had charged more people in criminal-threats cases in 2021 than in at least any of the previous five years. But officials have also struggled to make cases; for example, a task force formed last summer to investigate threats against election workers has yet to make an arrest.
Garland vowed to protect people’s voting rights, and he sounded the alarm about efforts in some states to audit results or have state lawmakers throw out voters’ choices entirely.
“But as with violence and threats of violence, the Justice Department — even the Congress — cannot alone defend the right to vote,” Garland said. “The responsibility to preserve democracy — and to maintain faith in the legitimacy of its essential processes — lies with every elected official and every American.”
Miller said Garland’s statement about needing the public’s help to protect democracy was notable, but he wished Garland had said more. Contesting the results of an election, Miller said, is not by itself a crime, and it is possible that prosecutors will ultimately conclude Trump’s actions “were deplorable but they weren’t illegal under federal statute.”
“I think they ought to be broadening the aperture even more, to say, ‘What new laws do we need if we have one party that’s just going to overturn elections all the time?’” Miller said. “The answer might be, that’s just not a criminal problem. I would like to hear what they think about that.”
The Jan. 6 insurrection
The report: The Jan. 6 committee released its final report, marking the culmination of an 18-month investigation into the violent insurrection. Read The Post’s analysis about the committee’s new findings and conclusions.
The final hearing: The House committee investigating the attack on the U.S. Capitol held its final public meeting where members referred four criminal charges against former president Donald Trump and others to the Justice Department. Here’s what the criminal referrals mean.
The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.
Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6. Here’s what we know about what Trump did on Jan. 6.