Let’s talk about the investigations of Trump’s effort to overturn the election. I’ve been hearing lots of people criticizing Attorney General Garland for being slow, saying nothing and some even accuse him of not being committed to the investigation of Trump. Let me be clear, when you hear anyone making remarks like that, realize that they are talking from ignorance and know little or nothing about how an investigation like this proceeds.
First, Garland is proceeding like the Justice Department has always proceeded against the Mafia and similar large organizations. It started against the people at the bottom and has been working its way up that ladder. That process not only yields information but gradually yields people who are willing to testify and provides paths to documents, witnesses and the evidence one needs to convict the big shots. You don’t just file against the boss and go to court shouting guilty, guilty. Good lawyers aren’t that naïve.
Second, although I claim no inside knowledge, congressional investigations and Justice Department investigations have to work together. The House Special Committee has to be sure that nothing it does will interfere with what the Justice Department is doing. Witnesses, for example, can be offered immunity so that they will give testimony without pleading the Fifth Amendment to avoid answering, but responsible House leaders wouldn’t offer immunity without checking with the Justice Department.
That points to something else – the House investigation can turn up information the Justice Department can use. It’s too simple to ask why the Justice Department couldn’t get the same information. Witnesses can be very skittish and it matters who talks to whom and how they come across. The House Committee has been doing very valuable work with the witnesses and in putting the story together. If I were Garland, I would want to take advantage of their effort even if it’s only the first draft of the story the Justice Department will put together.
There’s another issue – how will the public handle indictments? And how will a jury treat an indictment? It should be obvious that high profile cases are now typically fought in public before they are fought in court. That affects everyone involved, their willingness to deal with the time, energy and dangers of handling these cases – we have already heard testimony about intimidation. One good way to protect witnesses from being attacked, killed or punished is to put them on the public record before anyone can tamper with the evidence by threatening, intimidating or hurting witnesses. It will be a while before that could be done at a trial. Trump has been trying to rally the public to his side since it became clear he was going to be 7 million votes short of reelection. And the House is fighting back.
So if I were Garland, I would keep my mouth shut. I would not want to upstage the Special Committee. I would want to encourage, not impede, its work. And when you are trying to bring down a man with obvious power, you want to leave no stone unturned. The law can be slower than many of us would like, and outcomes are never guaranteed, but the Justice Department is one of the best legal organizations in the country and they will be ready for him when they come. I wouldn’t want to be Trump’s lawyer this time.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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