The Washington PostDemocracy Dies in Darkness

How the political probe of Trump intertwines with a likely criminal one

An image of a mock gallows on the grounds of the U.S. Capitol on Jan. 6, 2021, is shown as the House select committee investigating the Jan. 6 attack on the Capitol holds a hearing on June 9. (J. Scott Applewhite/AP)

What did Attorney General Merrick Garland tell NBC News that was new about the Department of Justice’s investigation into the effort to overturn the results of the 2020 election?

His interview with the network’s Lester Holt saw Garland once again offering familiar descriptions of his department’s work.

“We intend to hold everyone, anyone who was criminally responsible for the events surrounding Jan. 6, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable,” Garland said. “That’s what we do. We don’t pay any attention to other issues with respect to that.”

The inclusion of “lawful transfer of power” alongside “the events surrounding Jan. 6” was highlighted by Rep. Adam B. Schiff (D-Calif.), one of the members of the House select committee investigating the Capitol riot … and, more broadly, the threat to that lawful transfer. In an interview on MSNBC, Schiff said he “perceived a difference in what [Garland] had been saying earlier about focusing on all those involved in the attack on January 6th and now talking more broadly about the overall plot to overturn the election.” In other words: that Justice was now looking at more than just the riot.

There’s no doubt that Garland was deliberate in his choice of words, but it was not the first time he has mentioned the riot and the “transfer of power” in concert. In a speech commemorating the anniversary of the attack, Garland similarly linked them. The riot, he said then, interrupted “the peaceful transfer of power from one administration to the next.” Then, he added, “those involved must be held accountable” — a phrasing that might itself have looped in Donald Trump.

The Department of Justice is examining former president Donald Trump’s conduct relating to its Jan. 6 insurrection criminal probe. (Video: Blair Guild/The Washington Post)

So is what he said to Holt new? Simply another variation of what he said in January? What did he mean?

We ask these questions because we are arguing over the pattern formed by the tea leaves. Seeing the House committee’s work progress forward, exposed to the public, we wonder what’s going on behind closed doors at Justice.

What we know, though, hasn’t changed that much: There are two federal investigations into what happened after the 2020 election, one political and one criminal. One is centered on imposing a political cost on Trump — eroding his support for reelection — and the other is aimed at evaluating the viability of a case for criminal prosecution. One centers on Trump and works outward; the other, it seems, is starting at the bottom and working its way up. But the two are operating in parallel — and at times, in concert.

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“The Justice Department has been doing the most wide-ranging investigation in its history and the committee is doing an enormously wide-ranging investigation as well,” Garland said in the NBC interview. “It is inevitable that there will be things that they find before we have found them. And it’s inevitable that there will be things we find that they haven’t found. That’s what happens when you have two wide-ranging investigations going on at the same time.”

This, too, is a familiar refrain. Garland has said before that he and his team are watching the hearings. It has even demanded information from the committee’s probes, information it didn’t have. There are good indications that the Justice Department’s recent moves — ones that have increasingly focused on questions about Trump’s own activity, according to a Washington Post report — are influenced by the committee’s work.

After White House aide Cassidy Hutchinson’s eye-opening testimony to the committee earlier this month, the New York Times reported that officials at the Justice Department discussed the new pressure to focus on Trump’s role. On Wednesday, ABC News reported that Hutchinson was cooperating with the Justice Department’s probe. But even before the committee’s public hearings began, the department was already gathering information and evidence such as phone records — quietly.

The House committee investigating the Jan. 6 insurrection at the Capitol built their case over a series of eight public hearings. Here’s how they did it. (Video: Blair Guild/The Washington Post)

Many of those seeking accountability for the effort to overturn the election have wondered why the Jan. 6 committee was seeming to move so quickly in presenting its case against Trump while the Justice Department was mostly mum. The frustration was compounded by the committee’s ruminations about making a criminal referral to Justice, a recommendation of charges. The committee, it seemed, was doing Garland’s job!

This, of course, was not the case. It has been following a number of different threads linked to Trump’s effort to retain power, as journalist Marcy Wheeler has documented.

More fundamentally, the two probes seem to be operating in opposite directions. Andrew Weissmann, a former federal prosecutor who was part of special counsel Robert S. Mueller III’s Russia investigation, argued this month that Garland’s investigation should look more like the House committee’s: starting from Trump and moving outward along the various paths Trump took to upend Joe Biden’s election victory. This was a “hub-and-spoke” style of investigation, rather than the bottom-up one he argued that Justice had been conducting.

Garland’s team has been heavily focused on lower-level actors. More than 840 people have been arrested for participating in the riot, and the federal government has filed charges alleging several specific threads of seditious conspiracy. Members of extremist groups involved in alleged conspiracies have been asked about ties to people close to Trump. Advisers like John Eastman and Peter Navarro have been targeted with federal subpoenas or had devices seized. People involved in fake-elector plots in swing states have been subpoenaed.

Deferring to Weissmann’s expertise on how best to build a criminal case against Trump, it’s clear why the House committee has started from Trump and worked out. While most or all of its members would no doubt be unfazed about proving a prosecutable criminal case against the former president, they also have the transparent goal of blocking Trump’s path back to power.

“Every American must consider this,” committee Vice Chair Liz Cheney (R-Wyo.) said during last week’s hearing: “Can a president who is willing to make the choices Donald Trump made during the violence of January 6th ever be trusted with any position of authority in our great nation again?”

The House committee is starting from Trump and working out because their primary (though not sole) target is Trump. Garland’s mandate is broader, gathering evidence to prosecute any criminal activity. Snatching lower-level actors first then makes it possible to apply pressure up the food chain.

It’s easy to see how the twin efforts — one political, one criminal — might each find the other frustrating. Members of the House committee, like many in the public, would like to see formal accountability for Trump. The Justice Department would rather do its work without that sort of pressure. After all, the criminal probe is itself deeply political; if Justice finds enough evidence to suggest that Trump might be convicted of a crime, Garland has a very fraught decision to make about leveling charges against a former president — and, potentially, a presidential candidate.

The House committee is not similarly burdened. If anything, its incentives point in the other direction: making the case loudly, immediately and without qualification.

Different probes, different processes, different visibility. But linked together in both practical and ideological ways.