JUSTICE DELAYED

It now turns out that all of you “impatient ones,” the folks who were upset at the apparent lack of action by the Department of Justice and the FBI to investigate the January 6 attack on Congress and all that led up to that, the ones who complained that Merrick Garland as just sitting around, and that the longer this continued the worse things would get - all of you were were right.

The people like me who told you to calm down, that an investigation involving a former president and his attempt to create a coup against his own government, who said “when you strike the king, you must kill him” as an explanation of why the investigation was proceeding quietly and internally and carefully...

It turns out I was wrong.

The reason nothing was happening with regard to Trump and his minions and their crimes against the United States, was that there was no investigation.

The entire first 18 months of the Biden Administration saw the DOJ and FBI not only taking no action to investigate this crime against the republic, they were actively frustrating those in the two organizations who did want to do what was necessary.

It took the House Special Committee on the January 6 Attack on Congress to finally “move the needle” when they presented bombshell after bombshell in testimony from witnesses who could say from their first-hand experience that there was indeed a plot, operating at the highest levels of the Trump Administration, to overthrow the government and the Constitution, and install Donald Trump as an authoritarian dictator.

When we look at the speed with which Jack Smith has operated in bringing his indictment of Trump for the Mar A Lago documents, an investigation that only began last November and resulted in an indictment being issued after a seven month investigation, and the fact that there is every likelihood of a second indictment regarding Trump and his co-conspirators to overthrow the peaceful transition of power and in so doing destroy the republic that will be announced any day now, we can see what was lost during those 18 months of inaction.

Today, Smith operates under a deadline to indict and bring Trump to the bar of justice in a trial that is related to the coming election. Had this investigation begun any time in the first six months of the Biden Administration’s time in office, we would likely have completed trials and verdicts, or at a minimum be in the closing stages of those trials.

The deep investigation of this situation by the Washington Post, published in the paper today, shows how any possible investigation of those conspirators involved in the upper reaches of the conspiracy we slow walked and even shut down.

According to the Post’s report, in a meeting held only hours after he had been sworn in as attorney general, Merrick Garland and his top deputies were given a private briefing by Michael R. Sherwin, the then-acting U.S. attorney for the District of Columbia, on the January 6 investigation which Garland had promised when he was questioned during confirmation hearings by the Senate Judiciary Committee that his highest priority would be to bring to justice those responsible for the January 6 insurrection.

According to Sherwin, in the two months since the event, federal agents had conducted 709 searches, charged 278 rioters and identified 885 likely suspect. Sherwin’s office, assisted by the FBI, had the responsibility of prosecuting all crimes stemming from the attack. On January 7, he had refused to rule out the possibility that Trump himself could be culpable. In response to a question about Trump, Sherwin said, “We are looking at all actors, not only the people who went into the building. If the evidence fits the elements of a crime, they’re going to be charged.”

But according to a copy of the briefing document, Sherwin’s 11-page presentation to Garland on March 11, 2021, did not make any reference to Trump or his advisers.

Over the next year, the FBI resisted all attempts to investigate Trump and his advisors. This was in line with the policy of Merrick Garland and top assistant Attorney General Lisa Monaco, in which re-establishing the institutional propriety of the operations of the Department of Justice was seen as the primary goal, to the detriment of any investigations that anyone might claim were “political” or “partisan” in nature. “Restoring public trust” was their mantra.

I don’t know about anyone else, but I think the best way to “restore public trust” is to go after the perpetrators of the greatest crime against the government and people of the United States since the 1861 attack on Fort Sumter by the Confederacy would be the best way to demonstrate that the government was ready and willing and up to the task of “preserving, protecting and defending the Constitution of the United States of America.”

The delay in investigating Trump’s culpability in instigating the insurrection began before Garland was confirmed. Sherwin, senior Justice Department officials and top deputy to FBI Director Christopher Wray Paul Abbate stopped a plan by prosecutors in the U.S. attorney’s office to directly investigate Trump associates for any links to the riot, on the grounds such an investigation was premature. They on the kind of methodical approach to such an investigation, focusing first on rioters and going up the ladder, as was used in mafia investigations.

The problem with such a strategy is that there is no connection between the planners and plotters of the insurrection and the foot soldiers who participated in the assault. None of the leaders of the Proud Boys or the Oath Keepers met with any of the top conspirators, other than the contacts the Proud Boys had with Roger Stone.

An investigation planned against Roger Stone, who was photographed with the Proud boy leaders, to obtain email and other communications between him and the group’s leaders, was stopped in 2021 on grounds that the investigators had not provided sufficient probable cause that Stone had committed a crime and a fear that such an investigation would “tread” on Stone’s First Amendment rights. Another investigation into how the rioters were financed by examining the financial records of major Trump backers, was also closed down. When the National Archives’ Inspector General presented evidence of the similarities in language and production of the fake electors that provided evidence of a coordinated effort. DOJ and the FBI leadership turned it aside.

In November 2021, a request to subpeona the Willard Hotel to get information on all activities by Guiliani, Bannon and the others who were in the “war rom” in the hotel for several weeks before the insurrection was denied by the Special Agent in Charge of the FBI’s Washington field office, who claimed there was nothing in any reports of what had gone on that provided sufficient probable cause to serve a warrant on the hotel for the information.

It was not until the House Special Committee investigators turned over evidence obtained in top secret interviews with former Trump Administration officials that detailed Trump’s efforts to get Pence not to certify the election and to use the fake elector documents to sow confusion about the election, to the DOJ, that an investigation was finally initiated against the participants in the fake elector scheme.

Observers of the whole process point to the fact that only after the Special Committee raised questions and obtained statements and other evidence regarding several criminal elements of the conspiracy that investigators had tried to go after in 2021, did Main Justice add those investigations into the process in the spring and summer of 2022. FBI director Wray signed off on the investigation of the fake electors only in March 2022.

The speed of investigation by Jack Smith, who was only appointed Special Prosecutor on November 19, 2022, demonstrates what could have been done if similar urgency had been given to investigating the Trump conspiracy in the spring of 2021. The evidence and the witnesses hadn’t changed in those 18 lost months.

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