Jan. 6 panel puts Garland in a precarious position
Committee calling on the AG to act as probe continues
WASHINGTON — Lawmakers investigating the Jan. 6, 2021, attack on the U.S. Capitol are increasingly going public with critical statements, court filings and more to deliver a blunt message to Attorney General Merrick Garland and the Department of Justice.
President Donald Trump and his allies likely committed crimes, they say. And it’s up to you to do something about it.
“Attorney General Garland, do your job so we can do ours,” prodded Rep. Elaine Luria of Virginia.
“We are upholding our responsibility. The Department of Justice must do the same,” echoed Rep. Adam Schiff, D-Calif.
Their rhetoric, focused this week on two contempt of Congress referrals approved by the committee, is just the latest example of the pressure campaign the lawmakers are waging. It reflects a stark reality: While they can investigate Jan. 6 and issue subpoenas to gather information, only the Justice Department can bring criminal charges.
Committee members see the case they are building against Trump and his allies as a once-in-a-generation circumstance. If it’s not fully prosecuted, they say, it could set a dangerous precedent that threatens the foundations of American democracy.
The lawmakers seem nearly certain to send a criminal referral to the Justice Department once their work is through.
It all puts Garland, who has spent his tenure trying to shield the Justice Department from political pressure, in a precarious spot. Any criminal charges related to Jan. 6 would trigger a firestorm, thrusting prosecutors back into the partisan crossfire that proved so damaging during the Trump-Russia influence investigation and an email probe of Hillary Clinton.
Garland has given no public indication about whether prosecutors might be considering a case against the former president. He has, though, vowed to hold accountable “all January 6th perpetrators, at any level” and has said that would include those who were “present that day or were otherwise criminally responsible for the assault on our democracy.”
Parts of the department’s investigation have overlapped with the committee’s. One example is in late January when Justice announced it had opened a probe into a fake slate of electors who falsely tried to declare Trump the winner of the 2020 election in seven swing states that Joe Biden won. Three days later, lawmakers subpoenaed more than a dozen people involved in the effort.
But the Jan. 6 committee wants more. Their message was amplified this week when a federal judge in California — District Judge David Carter, a President Bill Clinton appointee — wrote that it is “more likely than not” that Trump himself committed crimes in his attempt to stop the certification of the 2020 election.
The practical effect of that ruling was to order the release of more than 100 emails from Trump adviser John Eastman to the Jan. 6 Committee. But lawmakers zeroed in on a particular passage in the judge’s opinion that characterized Jan. 6 as a “coup.”
But experts caution that Carter’s opinion was only in a civil case and does not
meet the long-standing charging policy the Justice Department is required to meet. Justin Danilewitz, a Philadelphia-based attorney and former federal prosecutor, noted the department faces a higher burden of proof in court to show that presidential immunity should not apply.
And Danilewitz said the legal advice Trump received from Eastman “undermines an inference of corrupt or deceitful intent.”
The department will be guided by the evidence and law, he said, “but the social
and political ramifications of a decision of this kind will not be far from the minds of Attorney General Garland and his staff.”
“A decision to bring or not bring criminal charges will have significant ripple effects,” he added.
Another point of friction with the Justice Department is the effort to enforce subpoenas through contempt of Congress charges.
The House approved a contempt referral against former White House chief of staff Mark Meadows in
December after he ceased cooperating with the Jan. 6 panel. While an earlier contempt referral against former Trump adviser Steve Bannon resulted in an indictment, the Department of Justice has been slower to decide whether to prosecute Meadows.
A decision to pursue the contempt charges against Meadows would have to come from career prosecutors in the U.S. attorney’s office in Washington before senior Justice Department officials would weigh in and decide how to proceed.