It’s been more than two years since the events following the 2020 presidential election that culminated in the Capitol riot on January 6, 2021. You don’t have to spend much time on social media or cable news to realize that a lot of people are frustrated and dismayed that the leading figures in the attempt to overturn the election, including former president Trump, have not yet been indicted. Some argue this proves attorney general Merrick Garland is timid, incompetent, corrupt, or some combination thereof.
I fall into a different and apparently smaller camp. I am neither surprised nor worried about the pace of DOJ’s investigation. On the contrary, I think all the outward signs are of a massive, complex criminal probe unfolding about as we should expect.
Before discussing why the investigation is taking so long, it’s worth considering what deadlines special counsel Jack Smith is facing. A common theme among those critical of the pace of the investigation is that DOJ is “running out of time.” Even some who are otherwise supportive suggest that Smith must indict soon, or else . . . well, or else what is not always so clear. But the conventional wisdom is that Smith had better hurry up.
In my view, when people say, “DOJ is running out of time,” what they usually mean is, “I’m running out of patience.” Let’s be clear about one thing: the only deadline with any legal significance the special counsel is facing is January 6, 2026. That’s when the five-year statute of limitations for many of the crimes being investigated will expire.
Any other supposed deadlines are based on politics, not law. You will hear variations of, “DOJ needs to indict before the campaign is fully underway;” “DOJ needs to indict before the primaries;” or “DOJ needs to indict soon so a trial can be completed before the 2024 election, in case the Republicans take back the White House.”
I don’t think these arguments hold water. And I’m willing to bet they are not influencing the special counsel’s timetable.
We may already be past the point where a trial of Trump could be completed before the 2024 election, even if he were indicted tomorrow. We are almost certainly past the point where a trial could be completed before the presidential primaries. There are complex legal issues that will need to be resolved -- possibly by the Supreme Court -- before the trial of a former president could begin. That will take some time.
The 2024 campaign is underway. Trump has already announced his candidacy. He recently declared he would not drop out of the race even if he is indicted. But as I wrote in this post, there’s nothing about being a presidential candidate that insulates him from prosecution.
True, having a presidential candidate who is under indictment and facing a criminal trial would be unprecedented. Presumably it would have some impact on Trump’s campaign – if nothing else, he might have to miss some campaign events to make his court appearances! Whether an indictment would help or hurt Trump with the Republican primary electorate remains to be seen.
But being indicted doesn’t stop Trump from campaigning, and his campaigning does not stop the criminal process. Theoretically Trump could continue to campaign even if he were in prison.
Being a candidate under indictment raises potential legal and political problems for Trump and his campaign, but it doesn’t really raise any special problems for the Justice Department.
What about the need to complete the prosecution before the 2024 presidential election? Of course, that’s only an issue if the Republicans succeed in defeating an incumbent president, which is difficult and relatively rare. If Biden wins re-election, there is nothing to worry about.
But suppose a Republican who is not Trump wins the presidency in 2024? The widespread assumption is that a Republican president would quickly terminate any ongoing case against Trump. I’m not so sure. Any Republican who defeats Trump for the nomination will necessarily have campaigned as a Trump alternative. It would be politically awkward for that president to then turn around and take the very Trumpian step of interfering with the Justice Department to torpedo a prosecution.
A new Republican president would face enormous political pressure to honor the historic independence of the Justice Department and allow any legal proceedings involving the special counsel to continue. (Recall that President Biden essentially had no choice but to allow the ridiculous John Durham special counsel investigation, and even an investigation of his own son, to continue unimpeded.) Candidates likely would be asked during the campaign to vow not to interfere with the special counsel’s work if elected.
Any new Republican president who wanted to win a second term would need only look at Gerald Ford’s experience after pardoning Richard Nixon to realize he or she should think twice about pardoning Trump or otherwise interfering with any ongoing prosecution. The hard-core Trump base might approve, but most of the country would not.
But what if the new Republican president is Trump himself? Then, of course, all bets are off. I personally find that almost impossible to imagine. But if, after all that has happened, Trump wins re-election while under indictment — well, let’s just say that what he does concerning his criminal case will be pretty far down my list of worries about this country.
In sum, I think the widely-held assumption that DOJ is running out of time based on the political calendar is incorrect. Any political effects are unpredictable. If you are worried about a future Republican president interfering with the prosecution or granting a pardon, that can happen regardless of the stage of the case -- and there's nothing the prosecution can do about it.
The corruption prosecutor’s general policy is to keep your head down, bring a case when it’s ready, and try to ignore such political noise. You don’t make prosecutorial decisions based on political timetables or hypothetical political events that you can’t control. Smith, a veteran prosecutor of political corruption cases, will almost certainly follow this practice.
Even if no true deadline is looming, two years is still a long time. What’s taking so long? Some of the reasons have to do with the nature of all large white-collar investigations, and some are unique to this case.
As a general matter, it’s not at all unusual for a large white collar investigation to take several years. When Enron collapsed in what was then the largest corporate failure in U.S. history, it was more than four years before the CEOs were convicted at trial. And as complex as that case was, it was relatively simple compared to the January 6 investigation.
The Nature of White Collar Investigations – Large white collar investigations differ in significant ways from an investigation of a bank robbery or a homicide. “Street crime” investigations generally begin when it’s clear a crime has been committed and the universe of potential charges is relatively well defined. The job is usually to assemble sufficient evidence to prove who did it -- a discrete task with clear parameters.
In a large white collar case, by contrast, “who did it” is often clear at the start. The task is to determine whether what they did was criminal. The array of possible charges and potential defendants may be much less clear at the outset, and likely will evolve as the investigation proceeds. This often results in a more wide-ranging and prolonged investigation.
Issues of Intent – White collar crimes frequently turn on questions of intent. Unlike assaulting someone or robbing a bank, the actions that can result in charges such as fraud or obstruction of justice often are not inherently wrongful. Trump talking to state officials to express concern about the integrity of their election is not unlawful. Trump giving a speech on the ellipse is not inherently unlawful and is potentially protected by the First Amendment. Whether his conduct crossed the line into criminality is going to depend on what he knew and what his intent was at the time of these acts.
This makes white collar cases particularly challenging. Frequently prosecutors are not trying to prove observable events that took place (as in “who pulled the trigger” or “who had the drugs”) but are trying to prove what was going on in someone’s head. That may require an exhaustive and time-consuming examination of witnesses and documents to build a circumstantial case piece by piece, while ruling out any ambiguities, uncertainties, or alternative explanations.
The Nature of the Grand Jury - Like most large white collar investigations, the January 6 investigation involves extensive use of the grand jury. Many witnesses are reluctant to cooperate and will testify only if required by a grand jury subpoena. Individuals and entities will not turn over records voluntarily, but only if compelled.
It takes time to subpoena witnesses, negotiate with their defense counsel, and arrange for them to appear in the grand jury. Institutions subpoenaed for documents and their counsel require time to assemble the documents, and investigators must then review them. Witnesses who testified once may need to be recalled when prosecutors learn more information. Claims of privilege and other legal issues may need to be litigated before a witness may be compelled to testify.
The grand jury is incredibly powerful, but the process itself is inherently cumbersome and time-consuming. That’s one reason it’s not at all uncommon for large grand jury investigations to last for several years.
The preceding factors apply to any large criminal investigation and help explain why they can take so long. But when it comes to the January 6 investigation, another factor is its size. This is the largest, most complex investigation in DOJ history.
When it comes to individual rioters at the Capitol, about a thousand have already been charged. These range from relatively minor misdemeanors to the prosecution of groups such as the Oath Keepers and Proud Boys for more serious crimes such as seditious conspiracy. Identifying and prosecuting the rioters themselves, which includes potentially enlisting their cooperation against higher-level defendants, has been an enormous task.
Beyond the riot itself, the scheme to overturn the election has multiple components: the fake electors scheme, the efforts to influence state election officials, the attempts to corrupt the Department of Justice, and more. These involve multiple different actors in different states. There are also related allegations, such as potential fraud charges for fundraising based on false claims about the stolen election.
Any one of these areas of the investigation, standing alone, might easily take several years to complete. This investigation has half a dozen or more such areas.
Many large criminal investigations raise complicated legal issues that must be resolved before the investigation can be concluded. This unprecedented investigation involves an unprecedented array of such issues.
Crucial witnesses have raised various legal objections to avoid cooperating. Attorneys who were part of the events surrounding Jan. 6 have asserted attorney-client privilege. Witnesses and/or Trump himself have raised claims of executive privilege. Former vice president Mike Pence is currently resisting a grand jury subpoena based on the novel argument that his actions on January 6 were protected by the Speech or Debate clause.
Resolving those disputes takes time. Prosecutors do not control what roadblocks a witness might throw in their way, nor do they control the court calendars. Depending on the nature of the evidence involved, it may be reckless or even impossible for prosecutors to go forward until such issues are resolved. Time spent fighting over such legal issues is time not spent examining additional witnesses or otherwise advancing the investigative ball.
Recent news reports highlighted one such example: prosecutors have spent more than six months trying to get records from the cell phone of Rep. Scott Perry, a key witness who took part in a scheme to replace the attorney general and have the Justice Department falsely declare there was election fraud. That’s just one cell phone from one witness. Multiply that by what is likely dozens of similar fights taking place in this investigation and you get some sense of what may be taking so long.
But why take on those fights? Some have argued that DOJ already has enough evidence and that there’s no such thing as a perfect case. They argue DOJ needs to “go to war with the army it has.” Maybe fighting these privilege battles is just an unnecessary luxury. Indeed, maybe they are a sign of a lack of resolve: prosecutors are too timid to move forward, so they hide behind these protracted legal battles. They should have the guts to just pull the trigger.
This argument might make sense if your only goal is to get an indictment. Indicting a case is relatively easy; prosecutors almost certainly already have enough to meet the low probable cause standard. But if you want to obtain a conviction, this attitude is a recipe for disaster.
Prosecutors have the burden of assembling and presenting evidence to prove guilt beyond a reasonable doubt to a unanimous jury at a contested trial. Evidence hidden behind claims of privilege may be critical meeting that burden - or it may demonstrate that proving guilt is impossible. It would be foolhardy to proceed without even trying to see that evidence, risking that it will come out later and blow up in your face at trial.
What’s more, prosecutors have an obligation not to bring a case unless they believe they have admissible evidence that will support a conviction. A defendant should not face indictment unless prosecutors are satisfied they can meet that burden. If there is potentially critical evidence that will provide a fuller picture of the defendant’s conduct, it is the prosecutor’s duty to seek it out. Individuals, including Trump, have a right not to be indicted by a prosecutor who decides simply to plunge ahead without all the evidence and hope everything works out.
Finally, this is an unprecedented case. The old cliche about striking at the king holds true - you’d better not miss. Of all cases, this one needs to be as close to airtight as possible. Failing to at least try to resolve evidentiary disputes involving crucial witnesses at the center of events would be irresponsible when there is no looming deadline that precludes it.
Garland and Smith know there is no such thing as a perfect case. At some point they may have to abandon some evidentiary fights and decide whether a prosecution can proceed without that evidence. But they are nowhere near that point yet.
Another argument you sometimes hear is, “But look at Georgia! Look how fast they are moving, they seem ready to indict! Why should the American people be forced to rely on state prosecutors to see that justice is done?”
But are the Georgia state prosecutors really moving that quickly? Last time I checked, January 6, 2021 was just as long ago in Georgia as it was everywhere else — and the Georgia case is far simpler. The alleged efforts to pressure Georgia state officials is only one component of the massive federal investigation. It would be remarkable if state prosecutors were not able to finish long before the federal investigation is concluded.
There are also reports that New York state prosecutors may be just now nearing a decision to indict Trump for the hush money payoff to Stormy Daniels — which happened more than six years ago.
Suffice it to say, state prosecutors are not putting the federal prosecutors to shame concerning the pace of their investigations. The state investigations actually provide more evidence of how much time it takes to put these cases together.
Finally, we must keep in mind that we don’t know most of what is going on behind the scenes. Grand jury investigations take place in secret. DOJ does not give press conferences when it issues a subpoena, or litigates a privilege claim, or persuades a witness to cooperate.
When details do leak out about particular legal battle they are usually coming from witnesses or their counsel, who are not bound by grand jury secrecy. But the issues and disputes that become public are only a fraction of all that is going on.
Some critics seem to believe that because Garland and Smith aren’t Tweeting about the investigation every day, nothing must be happening. But as Garland has said, DOJ speaks through its indictments.
The attorney general has repeatedly vowed that DOJ will hold everyone who is criminally responsible for January 6 accountable, no matter at what level. I’ve seen nothing to suggest he is backing away from that commitment.
Everyone would like to see the January 6 investigation resolved as quickly as possible. But haste for its own sake does not lead to good outcomes in criminal prosecution. Garland and Smith need to take the necessary time to get this right – and they do have the time.