It wasn’t long ago that most Democrats thought of United States Attorney General Merrick Garland as a sort of living martyr to Republican Party illiberalism, the would-be Supreme Court justice denied his place because of Mitch McConnell’s nihilistic commitment to raw power at any cost. Since joining the Biden administration, however, he’s largely inspired discontent among liberals for not pursuing Trump-era malefactors with a Javert-like intensity.
This week, in an implicit response to bubbling frustration among Capitol Hill leaders concerned that he was going too easy on former President Donald Trump and his top allies, Garland vowed to continue the federal investigation into the January 6 attack on Congress on Wednesday, asserting that prosecutors would pursue those who were responsible for it “at any level.”
“The Justice Department remains committed to holding all January 6 perpetrators at any level accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” Garland said in a speech at the Justice Department’s headquarters in Washington. “We will follow the facts wherever they lead.”
His remarks came on the eve of the one-year anniversary of the joint session of Congress to count the electoral votes, a once-ritualized event that descended into chaos last year after a mob of pro-Trump rioters overwhelmed the Capitol’s defenders and briefly occupied the center of American democracy. At least five people died on January 6 itself, and four Capitol Police officers who were present on that day died by suicide in the days and weeks that followed.
Trump, who had summoned protesters to Washington and encouraged the crowd to march on Capitol Hill in a speech earlier that day, was impeached by the House in a bipartisan vote shortly before he left office on January 20, 2021. Fifty-seven senators, including seven from his own party, voted to find him guilty at his impeachment trial, falling short of the margin necessary to convict him.
The apparent lack of criminal consequences for Trump’s actions has rankled lawmakers, especially after the House January 6 committee has publicized more of its findings in recent months about Trump’s inner circle in the run-up to the attack. Garland has defended federal law enforcement officials’ response since the attack. He described what may be the largest criminal investigation in American history: charges brought against more than 725 defendants so far by at least 140 prosecutors, drawing upon resources and staff from field offices across the country.
“So far, we have issued over 5,000 subpoenas and search warrants, seized approximately 2,000 devices, pored through over 20,000 hours of video footage, and searched through an estimated 15 terabytes of data,” Garland said. “We have received over 300,000 tips from ordinary citizens, who have been our indispensable partners in this effort.”
California Representative Adam Schiff, who played a key role in both of Trump’s impeachment proceedings—and who had previously been one of Garland’s most ardent critics—praised the attorney general’s speech. “As an American, and as a former assistant United States attorney, it gave me great pride to again witness how integrity has been restored to the leadership of the department,” he said in a statement on Wednesday. But he also urged Garland to investigate alleged efforts by Trump and his top associates to pressure state and local election officials to tamper with the election results.
“It is critically important that those acts also be investigated, and if criminal laws were violated, that those individuals also be held responsible,” Schiff said. “No matter who they are. The Justice Department cannot maintain that a current president is immune from prosecution and then take the position—through action or inaction—that so too is a former president.”
Illinois Senator Dick Durbin, who chairs the Senate Judiciary Committee, was slightly blunter. “Over the past year, prosecutors and FBI agents have worked diligently to bring that mob to justice,” he tweeted. “But make no mistake: Until those who unleashed the mob are also held accountable, the risk of future attacks on our democracy will continue to grow.”
In unusually frank language for a federal prosecutor in an ongoing investigation, Garland explained that the indictments and convictions of lower-level figures could lead to charges against higher-level ones. “We build investigations by laying a foundation,” he explained. “We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases. Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved.”
That explanation will likely give some observers flashbacks to Special Counsel Robert Mueller’s investigation into the Trump campaign’s relationship with Russia. Though Mueller was believed to be pursuing a similar course, Trump’s willingness to pardon figures like Roger Stone and Paul Manafort hindered his progress. Mueller ultimately laid out evidence in his final report that Trump may have obstructed justice during the course of his investigation; then-Attorney General Bill Barr declined to prosecute him for it.
Dave Rapallo, who served as Senior Director and Counsel for Legislative Oversight at the National Security Council under the Obama administration and previously as Chief Investigative Counsel on the Committee on Oversight and Government Reform, said that Garland “appeared to leave a clear implication” that the Justice Department was building a case against more prominent people in the January 6 investigation. “This was a carefully scripted speech he was making with full knowledge that it was going to be watched closely, especially with the one-year anniversary tomorrow,” he said in an interview.
But that acknowledgement carries risks. “If there is an investigation that’s publicly revealed of the organizers and higher level perpetrators, then people will point to this speech and say he went as far as he could during this speech within the bounds of not revealing non-public information about an ongoing investigation,” Rapallo said. “But if they aren’t actually doing that investigation, the concern is that some people could look back to this speech and, I think, potentially could say that he misled the American people, if that’s not actually occurring.”
For Garland, managing the expectations and public perceptions of the January 6 investigations will likely be a key challenge in his tenure leading the department. Biden nominated Garland last year in large part to restore public confidence in the Justice Department’s integrity after the tenures of Jeff Sessions and Bill Barr. But the events at the Capitol defined his tenure almost immediately: Biden’s formal announcement of his nomination took place just one day after the attack.
One year later, Garland said that the investigation will take as long as necessary to complete, consciously dashing expectations of swift consequences for those who helped instigate the attack. “I understand that this may not be the answer some are looking for,” he said in Wednesday’s speech. “But we will and we must speak through our work. Anything else jeopardizes the viability of our investigations and the civil liberties of our citizens.”
While that may not satisfy some of Trump’s fiercest critics, it also fits within the broader mandate he had for rebuilding the Justice Department. “We all need to respect the work that he is doing, and the fact that he is doing it with a great deal of dignity, and he’s doing it in the right way,” Delaware Attorney General Kathy Jennings said Wednesday morning during a press call hosted by the Democratic Attorneys General Association. “He is not politicizing this, he is just carefully parsing through the evidence that he has that he is gaining and the witnesses that have testified in Congress and will continue to testify. So this is a work in progress. I think we need to give him the space and time to do the right thing based on the evidence he gathers.”
