WASHINGTON — Facing criticism from Democrats and a few Republicans to hold former President Donald Trump accountable for his role in inspiring the riot at the Capitol, Attorney General Merrick Garland vowed Wednesday that the Justice Department would pursue wrongdoing “at any level,” saying that he would defend democratic institutions from attack and threats of violence.
“The Justice Department remains committed to holding all Jan. 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 to commemorate the anniversary of the riot, when Trump’s supporters ransacked the Capitol in a bid to stop the certification of Joe Biden’s election victory.
The remarks, delivered at the department’s headquarters, come as Garland is under pressure from Democrats to more aggressively investigate any role that Trump and his allies may have played in encouraging the violence.
The attorney general also obliquely addressed critics who have urged him to disclose more about the department’s inquiry, including whether investigators are scrutinizing Trump.
Garland reiterated that the department would not share details about its findings even as investigators have issued 5,000 subpoenas and search warrants, inspected more than 20,000 hours of video footage and sifted through an estimated 15 terabytes of data. “I understand that this may not be the answer some are looking for,” he said. “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 the House select committee investigating the Jan. 6 attack has signaled an openness to making a criminal referral to the department if it comes across evidence that Trump or others broke the law, Garland did not mention Trump or any specific investigation the department might be pursuing.
Garland has never given any substantive public indication of whether or how aggressively the department might be building a case against Trump or his advisers, and it is not clear what charges they could be subject to.
Some Democrats have openly pushed Garland to make clear that he intends to act.
Last month, former Sen. Claire McCaskill, D-Mo., said Garland would either “rise to the occasion or go down in infamy as one of the worst attorney generals in this country’s history” if he did not prosecute Trump for actions he took before and during the attack.
Department officials have pointed out that the agency’s Jan. 6 inquiry, among the largest investigations in its history, has already produced results. It has led to more than 700 arrests, and more than 275 people have been charged with obstructing Congress’ duty to certify the election results. The FBI asked the public Wednesday for help in identifying hundreds of additional suspects, and the government estimates that as many as 2,500 people could face federal charges.
Addressing criticism that many guilty pleas obtained by the department have been for misdemeanors, which come with little jail time, Garland said complex cases often first yielded charges that were “often less severe than later charged offenses” because investigators needed time to collect and examine more evidence.
Garland also connected the investigation to broader efforts by the department to prosecute threats of political violence and fight voting restrictions, pledging to “protect the cornerstone of our democracy: the right to every eligible citizen to cast a vote that counts.”
He added, “In a democracy, people must not employ violence or unlawful threats of violence to affect that outcome.”
And hanging over the investigation is the question of whether and how the Justice Department would build criminal cases against Trump, his top allies in Congress and former administration officials who worked to publicly undermine the results of the election and prevent Biden from taking office. Those include Mark Meadows, former White House chief of staff, and Jeffrey Clark, a former Justice Department official.
Trump and his inner circle made specious claims that the election was fraudulent, even after administration officials said Trump had lost. They pushed state and federal officials to falsely insist that they had found fraud, and they worked with lawyers to try to invalidate the Electoral College results in key swing states. And, when all else failed, they asked Trump’s supporters to come to Washington on Jan. 6 to “stop the steal.”
Legal experts have suggested that such acts could have violated federal voting laws or prohibitions against obstructing Congress from performing its official duties.
Trump’s critics have accused him of encouraging his supporters to use force to intimidate those who would not challenge the Electoral College results, including former Vice President Mike Pence.
But as federal prosecutors weigh the possibility of a case against Trump or his allies, they would need evidence strong enough to move through the federal courts. Given that Congress has impeached, but never removed, three presidents, the idea that such politically charged cases would sail through a system that has a higher bar for conviction is unlikely.
“If a case is on the bubble and can’t hold up to district court, an appeal and Supreme Court scrutiny, the department will need to use prosecutorial discretion,” said Norman Eisen, a senior fellow at the Brookings Institution who worked as counsel to House Democrats during Trump’s first impeachment over whether he had improperly pressured the president of Ukraine to falsely say he was investigating Biden.
Given the largely public nature of the acts committed by Trump, and the lies he continues to peddle since leaving office, Garland risks fostering the idea that presidents and their allies cannot be held accountable for behavior that undermines democracy, should the Justice Department be unable to publicly respond, experts said.
“You don’t want a president and administration — current or former — to be viewed as above the law by the people,” said Barbara Perry, a presidential historian at the University of Virginia’s Miller Center. “Politics will have trumped the law.”