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Jan. 6 hearings again raise questions for Justice Dept. over whether to charge Trump

Trump supporters clash with police and security forces as rioters try to storm the U.S. Capitol on Jan. 6, 2021.
Joseph Prezioso
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AFP via Getty Images
Trump supporters clash with police and security forces as rioters try to storm the U.S. Capitol on Jan. 6, 2021.

Updated June 14, 2022 at 4:14 PM ET

The Justice Department is racking up convictions in its investigation into the Jan. 6, 2021, attack on the U.S. Capitol, charging more than 800 people with crimes related to the deadly assault, securing three guilty pleas on the rare charge of seditious conspiracy and winning the cooperation of insiders from far-right groups.

But even as its investigation has heated up and fanned further out in recent months, the department has been hammered by lawmakers and political progressives who say it hasn't gone far enough.

Now, with the congressional committee tasked to look into the Jan. 6 insurrection holding a series of public hearings this month, many more are wondering about the progress of criminal prosecutions in what President Biden and others call an attack on democracy.

Committee Chairman Bennie Thompson said this week he'll leave the legal case to the prosecutors, telling reporters "I prefer that we complete our work and share that work with the Department of Justice, and they will make the call after that."

Vice Chair Liz Cheney, though, has said that the House select committee should not yet foreclose on the option of making a criminal referral against former President Donald Trump to the Justice Department. Through the hearings, the committee is showing a seven-part plan that it believes Trump followed to try to remain in power after he lost the 2020 election, and that it says ultimately led to the deadly riot.

After Monday's committee hearing, where a variety of Trump-era officials and campaign workers including former Attorney General Bill Barr discussed confronting Trump about lies about the 2020 election results, Garland told reporters he was watching every one of the hearings.

"And I can assure you that the January 6 prosecutors are watching all the hearings as well," he said.

The hearing scheduled for Wednesday on how Trump pressured the Justice Department to help him get the 2020 presidential elections results overturned has been postponed.

Even without a criminal referral, the department could indict Trump or anyone else if the facts line up to make a compelling case — and Attorney General Merrick Garland has said repeatedly his department will "follow the facts wherever they lead."

Proceeding with 'full urgency,' but at a frustrating pace

Liberal-leaning groups, though, are concerned that the Justice Department may cite other reasons not to bring charges, or say it is handcuffed by opinions and precedents. Legal analysts at the Project on Government Oversight want the department to identify whether any legal authorities bar it from charging Trump with a possible crime, writing recently that "we cannot simply trust in the Justice Department's willingness to hold a former president accountable."

When asked about legal barriers that would limit a case against high-level government officials, Garland said on Monday, "we are not obstructed from continuing our investigation in any way."

"There is nothing that is coming in the way of our investigation," he said. "We are proceeding with full urgency."

Of late, prosecutors have intensified efforts to investigate backers of political rallies in 2020 and early 2021, issued subpoenas to Stop the Steal figures and interviewed state legislators about an effort to disrupt certification of the 2020 presidential election results with fake slates of electors.

That is all happening, though, nearly a year and a half after violent rioters broke into the Capitol and stormed the halls with plans to kill then-Vice President Mike Pence and senior Democratic lawmakers.

"The pace can be frustrating," said former public corruption prosecutor Randall Eliason, "but there's every indication that Garland is doing exactly what he promised: starting at the bottom, working up the ladder and following it as high as it goes. It's the classic approach to a large case like this, but it does take some time."

Eliason pointed to the arrest of former Trump trade adviser Peter Navarro on criminal contempt of Congress charges, only days after Navarro himself disclosed that he had received a subpoena from a grand jury in Washington, D.C.

"I think the Navarro subpoena is just the latest sign that's what is happening," said Eliason, who teaches at George Washington University's law school. "That and other developments are signs of a massive investigation proceeding about as we should expect."

What deserves constitutional protection and what crosses a legal line

Deputy Attorney General Lisa Monaco, seen here with Attorney General Merrick Garland in March, said in an interview this year at her alma mater, the University of Chicago: "We look at and investigate the crimes in front of us, and then we work our way up. ... It's very important to do that in a methodical way so that people don't think you are starting from an assumption."
Kevin Lamarque / Pool/AFP via Getty Images
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Pool/AFP via Getty Images
Deputy Attorney General Lisa Monaco, seen here with Attorney General Merrick Garland in March, said in an interview this year at her alma mater, the University of Chicago: "We look at and investigate the crimes in front of us, and then we work our way up. ... It's very important to do that in a methodical way so that people don't think you are starting from an assumption."

Deputy Attorney General Lisa Monaco outlined some of her thinking in a rare public interview this year at her alma mater, the University of Chicago.

"We look at and investigate the crimes in front of us, and then we work our way up," Monaco said. "It's very important to do that in a methodical way so that people don't think you are starting from an assumption. ... Letting the facts guide you, not letting your assumptions."

That approach "should give people confidence that we are investigating conduct and not people and not viewpoints," she said.

Monaco seemed to be referring to the First Amendment defense advanced by former President Donald Trump, his onetime lawyer Rudy Giuliani and others in response to civil lawsuits over the Jan. 6 violence.

The Justice Department's senior-most officials have said peaceful advocacy of a particular viewpoint or ideology deserves constitutional protection. But, they've argued, violent threats cross the legal line.

This week, a grand jury in Washington, D.C., indicted Enrique Tarrio, the leader of the far-right Proud Boys group, and four associates for seditious conspiracy — essentially, an attempt to overthrow the government by force. Eleven members of the Oath Keepers, including founder Stewart Rhodes, already face that rare sedition charge.

This week, a grand jury indicted Enrique Tarrio, the leader of the far-right Proud Boys group, for seditious conspiracy. Here, Tarrio attends a rally in Portland, Ore., on Sept. 26, 2020.
Allison Dinner / AP
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AP
This week, a grand jury indicted Enrique Tarrio, the leader of the far-right Proud Boys group, for seditious conspiracy. Here, Tarrio attends a rally in Portland, Ore., on Sept. 26, 2020.

Pressure to go after people not at the Capitol that day, like Trump

But with only a few exceptions, federal prosecutors have yet to take public action against people not on the grounds of the U.S. Capitol during the riots.

Jeff Hauser, executive director of the Revolving Door Project, a left-leaning nonprofit, has warned the Justice Department that its failure to prosecute corrupt corporate executives and public officials already has led to a loss of confidence in institutions.

"The Justice Department is the only body capable of prosecuting those who raided the Capitol," Hauser said. "This is the most important chance in at least a generation to hold to account the powerful criminals who would undermine the government from within."

President Donald Trump speaks at the Save America rally near the White House on Jan. 6, 2021, the day of the attack on the U.S. Capitol.
Jacquelyn Martin / AP
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AP
President Donald Trump speaks at the Save America rally near the White House on Jan. 6, 2021, the day of the attack on the U.S. Capitol.

Three people with federal prosecution experience told NPR that in their view, the Justice Department has been proceeding fairly swiftly with its work on the Jan. 6 attack. Some former prosecutors such as Kristy Parker and Barbara McQuade have drafted and published their own analyses about Trump and his legal jeopardy.

"What the committee has called a seven-part plan to overturn the election was also a multifaceted plan to break the law," Parker said this week.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

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Carrie Johnson is a justice correspondent for the Washington Desk.