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The federal indictment of Donald Trump in the classified documents case this month has trained a spotlight on the Justice Department’s other ongoing investigation − into whether the former president illegally conspired to overturn the results of the 2020 election and stay in office after he lost to Democratic rival Joe Biden.
For nearly a year, some legal analysts and former federal prosecutors publicly have questioned whether Attorney General Merrick Garland and his team of prosecutors have moved quickly enough to investigate the events leading up to the Jan. 6 Capitol riot and Trump’s potential role in any related conspiracies to keep him in power.
On Monday, the Washington Post published an investigative report saying that the FBI resisted opening a probe into Trump’s role in Jan. 6 for more than a year, in part due to an interest in appearing apolitical. The newspaper also reported that key Justice Department officials quashed an early plan for a task force that would focus on gathering information about people in Trump’s orbit and whether they − and the president himself − were involved in any of the plotting.
The Post investigation said “there were consequences to moving at a slower pace,” including a failure to interview White House aides and other key witnesses. “In that time, communications were put at risk of being lost or deleted and memories left to fade,” according to the Post report. It also said key officials at the Justice Department, FBI and special counsel Jack Smith’s office had no comment on the report.
The Justice Department on Monday did not immediately respond to a request for comment from USA TODAY.
Justice Department probe delays “obvious to anyone”
Several former federal prosecutors and a Democratic lawmaker said Monday that they have long been concerned about the slow pace of the investigation.
Joyce White Vance, the former U.S. Attorney for the Northern District of Alabama, said the hesitation by the Justice Department and FBI “has been obvious to anyone who has been paying attention, especially people in law enforcement” who are familiar with how such high-profile investigations are conducted.
Vance said that over the past year, she and the former U.S. attorney for the Southern District of New York, Preet Bharara, have used their podcast to frequently call out the Justice Department and the FBI for moving too slowly.
“It may be that some of this evidence that they now have access to wouldn’t have percolated that early but here’s the thing: When you don’t talk to witnesses while their memories are fresh, then you lose that freshness of memory. And people lose things or deliberately obscure evidence,” Vance said in an interview. “So those are just a couple of the very basic reasons why it’s important to jump on a case as soon as you realize there is predication.”
Predication means having a factual basis – also known as probable cause or a reasonable basis – to conduct an investigation.
A flurry of subpoenas and a fast start
Garland had been criticized for the apparent slow pace of the Jan. 6 investigation even before Trump launched his 2024 presidential campaign last November. Days later, Garland appointed Jack Smith as special counsel to oversee the Jan. 6 investigation, vowing that he would carry out the job of looking into Trump in an “evenhanded and urgent manner.”
Smith made history by bringing the first-ever federal criminal charges against a former U.S. president in the classified documents case against Trump and loyal aide Walt Nauta. But his team’s progress on the Jan. 6 case has been harder to discern publicly, in part due to the sensitivity of the case, according to Vance and veteran former federal prosecutor and Justice Department official Gene Rossi.
Smith’s team issued a flurry of subpoenas within days of his appointment, including to election officials in key battleground states where Trump’s team waged unsuccessful challenges to overturn President Biden’s election. A grand jury has been impaneled in Washington, D.C. to hear testimony in the case. Some key witnesses have testified, including former Vice President Mike Pence.
Rossi said he believes Garland had good reason initially to focus on identifying and prosecuting those who actually rioted at the Capitol on Jan. 6 before widening the focus to include investigation of higher-level co-conspirators.
“And the reason they did that, in my view, is they wanted to just get those convictions, those charges filed and litigated right away and avoid the politics of going after Trump so soon after he left the office and leave that for a later day,” Rossi said. “So it was it was an understandable delaying of the investigation. But it did harm them because they started this marathon about 20 minutes behind everybody else” including county prosecutors in Georgia who are also probing Trump’s efforts to overturn the election.
Rossi, who did more than 110 federal trials during his time at the Justice Department, said Smith “still has adequate time to investigate Donald Trump’s role, if any, in the Jan. 6 rebellion and insurrection. He just started a little later than he normally could have.”
Waiting “far too long” to investigate Trump
Some lawmakers and legal experts said they were alarmed by the new disclosures in the Washington Post.
“This Washington Post investigation confirms what I have been concerned about for almost two years: While the DOJ moved quickly to investigate the foot soldiers of the Jan 6 attack, it waited far too long to investigate leaders of the effort to overturn the election,” said Rep. Adam Schiff, (D-CA), who was a member of the House Select Committee investigating the riot.
Former senior Justice Department official Andrew Weissmann wrote in a July 11, 2022 op-ed that Garland’s emphasis on a bottom-up approach to the Jan. 6 probe had rightly “led to criticism of the slow pace of the narrow Justice Department approach.”
Weissmann, a senior prosecutor in the special counsel investigation into Russian interference in the 2016 election, wrote that it was clear by then that prosecutors needed to focus on Trump as the hub of the Jan. 6 conspiracy given his connections to so many other potential suspects involved in numerous aspects of the plot.
“The American public is entitled to a thorough, fearless, competent and fair criminal investigation,” Weissmann wrote at the time.
On Monday, in response to the Post story, Weissmann tweeted, “Today’s @WashPostPR story and my NYT Op Ed from July 2022 are of a piece. DOJ delayed on J6 case inexcusably.”
“Not appearing political,” Weissmann added in another tweet, “is not a reason to fail to do one’s job.”
More:Jan. 6 Capitol attack 2 years later: Trump still plagued by multiple investigations
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