Since late June, Attorney General Merrick Garland has certainly picked up the pace of his criminal investigation of the 2021 coup. Multiple key witnesses have appeared in front of a federal grand jury, and more will do so soon. Garland has publicly confirmed he will follow the facts wherever they lead, including all the way to former president Donald Trump’s inner circle and to Trump himself.
If the law and facts warrant, we should expect Garland to treat Trump no differently than any common criminal. The key question will be: Will the department be able to prove each element of a crime (or crimes) beyond a reasonable doubt?
Garland’s steady stream of testimony from high-level officials reaffirms this commitment. Marc Short, former vice president Mike Pence’s chief of staff, and Greg Jacob, his chief counsel, have already testified before the grand jury. Pat Cipollone, former White House counsel, and his deputy Patrick Philbin have been summoned. These attorneys had a front-row seat to the false-electors scheme. In calling them in to testify, Garland eliminates doubt as to whether the department is exploring evidence of Trump’s connection to the nonviolent elements of the coup as well as to the violence on Jan. 6. (Spoiler: He is examining both.)
Garland might forgo subpoenaing witnesses who are possible targets, such as Mark Meadows, Trump’s former chief of staff, but given new allegations of wrongdoing (e.g. wiping Secret Service phones) and newly uncovered evidence (e.g. Alex Jones’s phone), the Justice Department will have plenty to keep investigators, prosecutors and grand jury members busy for some time.
Expect the grand jury testimony to move swiftly and in secret — and with tools Congress lacks. Unlike with the Jan. 6 hearings, prosecutors operating with a grand jury will not tolerate bogus executive privilege claims. Moreover, while grand jury leaks do occur, the Justice Department cannot release testimony. Neither Trump nor other witnesses therefore will know the contours of the testimony, nor even the identities of all the witnesses. And finally, prosecutors can grant immunity strategically to critical witness — again, whose identities may not be known to Trump and his cronies.
As he should, Garland has refused to put a deadline on the investigation. However, it is not inconceivable we could see indictments of one or more top figures by early 2023. And given the apparent attempts to intimidate witnesses and destroy evidence (not to mention the possible loss of the Democrats’ House majority, thereby triggering efforts to defund the investigation or even attempts to impeach Garland), he should not let up.
Several critical decisions remain, including:
- Will Garland subpoena Pence and compel him to testify? If no privilege applies (as prosecutors’ briefs to date claim), Pence has no excuse to avoid a grand jury appearance. That’s how the Justice Department will get the most intimate and valuable accounts of Trump’s bullying of his own vice president to keep him in power.
- Will he subpoena members of Congress and reject their bogus privilege claims? There is no legitimate privilege that would apply, for example, to Trump’s Dec. 21, 2020, meeting with a pack of election deniers. No privilege protects conversations they might have had with Trump or his aides on Jan. 6. Some members of Congress might take the 5th Amendment, but others could well cooperate.
- Will he move to enlist the help of Trump lawyer John Eastman and former DOJ official Jeffrey Clark? Or seek to prosecute them? Investigators have Eastman’s phone and the results of a search warrant executed at Clark’s home. (A question remains as to whether the Jan. 6 investigators or the inspector general is running those cases.) If the evidence obtained from them already provides ample evidence to use against Trump, Garland may not need their cooperation. Instead, he can proceed to decide whether to prosecute. Given their central roles in the coup, this might be a case in which the lawyers go down with the principals.
In sum, we are in a fundamentally different place in the Trump investigation (or are at least have a fundamentally different understanding of it) than we were just a few weeks ago when the Jan. 6 committee had its last hearing. We can confidently conclude that Trump’s conduct is under investigation and that the entire coup, not just the violence on Jan. 6, is within the scope of the investigation. Americans should be assured we’re going to find out the complete story. And that is terrible news for the man behind it.