Justice on the Move
Terry H. Schwadron
July 29, 2022
So, despite the Department Justice secrecy, despite the hide-the-news campaign by the political right, despite look-elsewhere protests from Donald Trump himself, we’ve arrived at confirmation of a deepening federal probe of lawbreaking by Trump’s inner circle, including the probability of first-ever charges involving a former president.
All parties, including the House Select Committee, have been vocal about a need to keep quiet about any literal criminal investigation of the multiple schemes leading to the Jan. 6 riot to upset confirmation of 2020 election results.
But the need to respect process here has given way to enough smoke from the federal grand jury rooms to fuel more than smoldering that Trump himself finally is in the crosshairs of the Justice Department.
It’s both a hallelujah moment and a time to ponder what we face.
After months of complaint that Justice was spending way more time and effort to eschew the leaders of an attempted government insurrection than those rioters who broke and entered into the Capitol on their behalf, there is enough reporting from The Washington Post, The New York Times and a few others to believe that Justice not only is focused on the wrongdoings of the post-2020 election “Big Lie” but that the effort is deep at this point, involving lots of potential federal law violations.
That Attorney General Merrick Garland would assent to an NBC interview to declare again in his Yoda-speak that basically no one is beyond the law was a clue. The interview aired just as sourced stories were emerging about the targeting of grand jury questions about the behaviors and communications towards coordinating the various schemes to interfere illegally with the election count.
From all accounts, we’ve reached the point where the public declarations to the House committee about bad presidential behavior is meeting up with efforts by prosecutors to build criminal cases against advisors and a former president himself.
A Busy Investigation Calendar
As we know, there is a parallel investigation and grand jury in Georgia as well, out of reach of federal commutation powers. And there remain multiple state bar reviews of actions by lawyers who, from all available evidence, brought dozens of cases with no evidence into courts to challenge the election results.
We’ve seen the conviction of Trump advisor Steve Bannon in federal court for refusing to answer a congressional subpoena and watched as a federal judge stripped away the non-legal arguments that Bannon had planned in a political defense. We know there are other advisers who have resisted complying with like congressional subpoenas.
The confirmation that federal grand juries who review evidence towards criminal matters are issuing subpoenas to the same crowd means that no political defenses will work. Only legal defenses will work, and they too are harder to mount, given the volume of emails, texts, videos and images and testimony from participants in plotting meetings.
Those participants who skated on Fifth Amendment testimony exceptions are going to find a different set of legal tests before grand juries.
Instead, we are hearing that grand juries are reviewing the voluminous cases build over coordination to submit fake elector slates to Congress (with emails from plotters actually calling them “fake”), to coordinate efforts to pressure former Vice President Mike Pence and state legislatures into sending non-elected Trump slates to Congress, to summon and incite the mob on Jan. 6. It is unclear whether there is any possible legal violation in a president sitting by as violence continues, and rather than act to stop it, to spend time calling on Republican senators to create further delay.
From the various news reports, it seems clear that grand juries have stronger powers to require witness testimony than the House committee, but that criminal indictments require a higher level of provability in court than do hearings that opponents can trash as show trials to be ignored.
Always More Questions
As always, confirmation of certain details of an ongoing federal investigation are prompting new questions.
Who exactly can be charged, and with what crime? Even if the overall assembled schemes represent a treasonous attempt to undercut the peaceful transfer of power at the heart of our democracy, what here are provable specific criminal acts? Will the Justice Department’s own rules about the handling of politicians before an election or a Trump announcement of a 2024 candidacy have practical effect on timing or content of any charges that may emerge?
What is the role of accountability and justice, and what are the obvious limitations of politics and precedent-setting? Will a criminal indictment of Trump just mean a possible Republican administration indictment of Joe Biden in January 2025, should the GOP prevail in that next, certain-to-be-disputed election?
If we reach that stage, can we find 12 jurors to sit in judgment of a former president?
Obviously, security and government people ought to be doing a whole lot of thinking right now about the inevitable response on the MAGA ground following any announcement of indictments involving Trump.
If you didn’t like Jan. 6, you really are not going to like the street plebiscite that will follow that announcement. Nor will you like the response if state and federal grand juries find nothing to charge anyone in these schemes.
Get ready for the story-spinning early: Justice and accountability v. Rigged results and a partisan attack. It’s going to be on every street corner.
We can’t put Jan. 6 aside, as Republican lawmakers want. We can’t ignore lawbreaking, as Trump wants. We can’t ignore the fact that something like 40 percent of the country thinks the elections were rigged, and we had better not forget that there are more guns than people in this country.