Garland facing pressure as probe widens
Attorney general says facts of Jan. 6 attack are critical
Immediately after Merrick Garland was sworn in as attorney general in March of last year, he summoned top Justice Department officials and the FBI director to his office. He wanted a detailed briefing on the case that will, in all likelihood, come to define his legacy: the Jan. 6 assault on the Capitol.
Even though hundreds of people had already been charged, Garland asked to go over the indictments in detail, according to two people familiar with the meeting.
The attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Joe Biden himself. As recently as late last year, Biden confided to his inner circle that he believed former President Donald Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Garland, he has said privately that he wanted Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6, 2021.
Speaking to reporters Friday, Garland said and the career prosecutors working on the case felt only the pressure “to do the right thing,” which meant that they “follow the facts and the law wherever they may lead.”
Still, Democrats’ increasingly urgent calls for the Justice Department to take more aggressive action highlight the tension between the demands of politics and the methodical pace of one of the biggest prosecutions in the department’s history.
“The Department of Justice must move swiftly,” Rep. Elaine Luria, D-Va., a member of the House committee investigating the riot, said this past week. She and others on the panel want the department to charge Trump allies with contempt for refusing to comply with the committee’s subpoenas.
This article is based on interviews with more than a dozen people, including officials in the Biden administration and people with knowledge of the president’s thinking, all of whom asked for anonymity.
In a statement, Andrew Bates, a White House spokesman, said the president believed that Garland had “decisively restored” the independence of the Justice Department.
“President Biden is immensely proud of the attorney general’s service in this administration and has no role in investigative priorities or decisions,” Bates said.
A Justice Department spokesman declined to comment.
The Jan. 6 investigation is a test not just for Garland, but for Biden as well. Both men came into office promising to restore the independence and reputation of a Justice Department that Trump had tried to weaponize for political gain.
For Biden, keeping that promise means inviting the ire of supporters who say they will hold the president to the remarks he made on the anniversary of the assault on the Capitol, when he vowed to make sure “the past isn’t buried” and said that the people who planned the siege “held a dagger at the throat of America.”
Complicating matters for Biden is the fact that his two children are entangled in federal investigations, making it all the more important that he stay out of the Justice Department’s affairs.
The department is investigating whether Ashley Biden was the victim of pro-Trump political operatives who obtained her diary at a critical moment in the 2020 presidential campaign, and Hunter Biden is under federal investigation for tax avoidance and his international business dealings. Hunter Biden has not been charged with a crime and has said he handled his affairs appropriately.
Justice Department officials do not keep the president abreast of any investigation, including those involving his children, several people familiar with the situation said. The cases involving Hunter Biden and Ashley Biden are worked on by career officials, and people close to the president have no visibility into them, those people said.
Still, the situation crystallizes the delicate ground that Biden and Garland are navigating.
When it comes to Jan. 6, Justice Department officials emphasize that their investigation has produced substantial results already, including more than 775 arrests and a charge of seditious conspiracy against the leader of a far-right militia. More than 280 people have been charged with obstructing Congress’ duty to certify the election results.
And federal prosecutors have widened the investigation to include a range of figures associated with Trump’s attempts to cling to power. According to people familiar with the inquiry, it now encompasses planning for pro-Trump rallies before the riot and the push by some Trump allies to promote slates of fake electors.
The Justice Department has given no public indication about its timeline or whether prosecutors might be considering a case against Trump.
The House committee investigating the Jan. 6 attack can send criminal referrals to the Justice Department, but only the department can bring charges. The panel is working with a sense of urgency to build its case before this year’s midterm elections, when Republicans could retake the House and dissolve the committee.
Biden is aghast that people close to Trump have defied congressional subpoenas and has told people close to him that he does not understand how they think they can do so, according to people familiar with his thinking.
Garland has not changed his approach to criminal prosecutions in order to placate his critics, according to several Justice Department officials who have discussed the matter with him. He is regularly briefed on the Jan. 6 investigation, but he has remained reticent in public.
“The best way to undermine an investigation is to say things out of court,” Garland said Friday.
Even in private, he relies on a stock phrase: “Rule of law means there not be one rule for friends and another for foes.”
He did seem to acknowledge Democrats’ frustrations in a speech in January, when he reiterated that the department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.”
Despite Biden’s private frustrations, several people who speak regularly to the president said he had praised Garland as among the most thoughtful, moral and intelligent people he had dealt with in his career.
The two men did not know each other well when Biden selected him for the job. Garland had a closer relationship with Ron Klain, Biden’s chief of staff.
Officials inside the White House and the Justice Department acknowledge that the two men have less contact than some previous presidents and attorneys general.
Some officials see their limited interactions as an overcorrection on the part of Garland and argue that he does not need to color so scrupulously within the lines. But it may be the only logical position for Garland to take, particularly given that both of Biden’s children are involved in active investigations.
The distance between the two men is a sharp departure from the previous administration, when Trump would often call Barr to complain about decisions related to his political allies and enemies. Such calls were a clear violation of the longtime norms governing contact between the White House and the Justice Department.
Federal prosecutors would have no room for error in building a criminal case against Trump, experts say, given the high burden of proof they must meet and the likelihood of any decision being appealed.