DOJ Is In

This evening, the Washington Post dropped a story that got a lot of people’s attention with this lede: “The Justice Department is investigating President Donald Trump’s actions as part of its criminal probe of efforts to overturn the 2020 election results, according to four people familiar with the matter.”

This, on the same day Trump returned to Washington D.C., for the first time since his sullen departure, when he ungraciously refused to attend Joe Biden’s inauguration.

The speech Trump came to D.C. to give only reinforced the need for him to be held accountable. He had the audacity to say, “There is no longer respect for the law and there is no order.” That might have been accurate if he was pointing at himself, but of course, he wasn’t. His insistence on perpetuating the big lie demonstrates that unless he’s held accountable, he’ll continue to present a danger to the republic.

The new reporting in the Post is significant because it’s the first to confirm that DOJ is focusing on Trump himself. He appears to be a subject of the investigation, with witnesses being directly questioned about his conduct:

“The prosecutors have asked hours of detailed questions about meetings Trump led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election; and what instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states, the people said. Some of the questions focused directly on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers, including John Eastman and Rudy Giuliani, these people said.”

In federal cases, people of interest fall into one of three categories, which are set out in the Justice Manual, the prosecutors’ bible:

• A "target" is a person who prosecutors believe is likely to be indicted, based on the evidence they’ve acquired.

• A "subject" of an investigation is a person whose conduct falls within the scope of the crime(s) the grand jury is investigating. They may or may not progress and become a target.

• A “witness” is a person who has testimony to offer that will advance an investigation but who is either not under investigation or has cut some form of deal with prosecutors to offer testimony in lieu of prosecution or for preferential treatment at sentencing, after conviction.

It’s important to note that this reporting suggests Trump is a subject. We cannot know for certain whether he will be charged at some point.

The reporting is referencing grand jury investigation. That means it’s unlikely that the Washington Post’s sources are prosecutors or federal law enforcement agents, who are prohibited by law from revealing information about grand juries. Grand jurors are similarly prohibited from discussing proceedings. But witnesses in front of a grand jury are free to discuss their testimony, although in sensitive cases, prosecutors will sometimes ask for their cooperation in keeping matters under wraps. The Post attributes its story to “two people familiar with the matter.” My guess is that they are witnesses, or their lawyers, or others close to them.

That makes the timing of the story even more interesting. Is it just coincidence that Trump and his former Vice President Mike Pence both gave speeches in Washington, D.C. today, drawing battle lines for 2024 as this news broke? Pence’s chief of staff Marc Short and his legal counsel Greg Jacob have both testified in front of the D.C. grand jury, but the Post’s story says they declined to comment for it. Similarly, Mark Meadow’s lawyer declined to comment. That leaves the potential field of sources wide open. And, the story  certainly takes some pressure off of Merrick Garland (who, coincidentally—or not—gave an interview to NBC’s Lester Holt today in which he reiterated that DOJ would prosecute everyone criminally responsible for the attempt to interfere with the transfer of power, even if they were a candidate for the presidency).

Garland and the folks at DOJ were undoubtedly happy to see this bit included in the Post’s story:

“In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter. That effort is another indicator of how expansive the Jan. 6 probe had become, well before the high-profile, televised House hearings in June and July on the subject.”

Someone seems to have been intent about making sure the reporters didn’t miss that point!

Another story today, that would have topped the headlines any other day, was the New York Times report on emails among the lawyers involved in Trump’s fake elector scam. You can’t make this stuff up. Read the story and you’ll snicker the whole way through, hearing the former president bragging about “only the best people” in your mind.

Here’s the gist of the story: emails among a number of Trump lawyers (folks whose names you may have heard like Boris Ephsteyn, and others like Jack Wilenchik, who are lesser known) reveal that they knew that the fake elector scheme wasn’t legal. In fact, Wilenchik actually referred to them as “fake” electors in an email. Here’s my favorite part of the story: “In a follow-up email, Mr. Wilenchik wrote that “‘alternative’ votes is probably a better term than ‘fake’ votes,” adding a smiley face emoji.”

The back and forth suggests that both Rudy Giuliani and Mark Meadows had some oversight of the plan to submit fake slates of electors so members of Congress who were in on the plan could object to the vote and interfere with the certification of the 2020 presidential election. We’re fortunate these people weren’t competent.

Evidence is additive. Prosecutors don’t rely on just one piece of evidence to make their case. It’s the cumulative value of all of the evidence, taken together, that establishes guilt beyond a reasonable doubt. Although we’re seeing a tidal wave of evidence at the moment, it’s important to keep in mind that DOJ still has its work cut out for it. For one thing, prosecutors will have to interview all of the witnesses who appeared in front of the January 6 committee. They need to evaluate potential defenses, both factual and legal, and make sure they can overcome them. It’s a lot of work and it takes time.

As a guess, albeit an educated one, I’d say that before we see an indictment of Trump, if in fact we see one, there will be indictments of other people involved in one or more of the conspiracies aimed at interfering with the transfer of power. In his January 5 speech commemorating the one year anniversary of the insurrection, Merrick Garland made this point:

“We build investigations by laying a foundation. 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. And that evidence can serve as the foundation for further investigative leads and techniques.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.”

That suggests a roadmap for the investigation that involves lower level defendants before it makes its way into the Oval Office. Garland still needs cooperating witnesses who can narrate the story of Trump’s involvement.

I’m interested in your reactions to the day’s events, Merrick Garland’s interview, the breaking new on the investigation. I hope you’ll let me know what you’re thinking in the comments below!

We’re in this together,

Joyce