In a Jan. 5 speech to the nation, Attorney General Merrick Garland said, “We will, and we must speak through our actions.”
Garland’s well-crafted words told Americans what they needed to hear. We maintain hope that he will swiftly investigate the leaders behind the violent Jan. 6, 2021, Capitol attack by a pro-Trump mob that sought to prevent Congress from certifying the 2020 Electoral College vote. But he must also spearhead an investigation into the earlier, bloodless coup attempt that failed to overturn the election and thus made force the only option to interrupt the transfer of power.
Unfortunately, little in the attorney general’s words provided any firm basis for that hope.
Still, credit Garland with reaffirming the Justice Department’s commitment “to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” We applaud without qualification those important words.
We also believe in the importance of an investigation the scope of which goes beyond the Capitol invasion. Garland said nothing specific about the preceding, nonviolent part of the evident plot to overturn the election. A volume of public evidence backs the theory that the mob riot was Plan B, the contingency portion of that scheme.
In other words, what seems plain from the record is that the Capitol siege was needed only if the preceding strategy, Plan A, foundered. Plan A was designed to find holes in our democratic structure that Donald Trump could drive his truck through to retain power despite election defeat.
In fact, our institutions held. In December, notwithstanding unrelenting pressure from Rudy Giuliani and other Trump agents, no state legislature reversed its election officials’ certifications of Joe Biden’s victory. In Washington, again contrary to Trump’s efforts to intimidate, the Justice Department refused to falsely assert that evidence of widespread ballot fraud existed.
In a Jan. 2 call to Georgia Secretary of State Brad Raffensperger, Trump urged his fellow Republican “to find 11,780 votes” he sought in order to obtain one more vote than needed to overturn the state’s election. Raffensperger refused. Finally, on Jan. 5, 2021, Vice President Mike Pence infuriated Trump by telling him he could not accede to Trump’s request to reject or delay the Electoral College vote count the following day. These were all pieces of an unsuccessful, bloodless coup-in-the-making.
The plotters’ initial seditious efforts could easily have succeeded. The fact that they failed cannot justify avoiding a robust investigation of those efforts as part of an apparent conspiracy that landed, with vengeance, in the House and Senate chambers. There are potential crimes relating to the nonviolent part of the scheme, crimes such as threatening a state official — as he did with Raffensperger and his general counsel, Ryan Germany — and depriving that official of the benefits of his position, or the separate crime of defrauding the United States. Under the Supreme Court ruling in Tanner v. United States, that crime includes “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.”
As we and others have said elsewhere, there are to date “zero signs” of any Justice Department focus on the plot leaders. Following his speech, Garland has the opportunity to investigate those who headed all parts of the apparent conspiracy. He should seize the moment.
There is every reason not to delay. An investigation working its way up the chain of command from foot soldiers to generals is perfectly suited for an event like the storming of Congress. But as to the plotters’ hoped-for plan to defeat the people’s will without force, the cabal running it was not an army but rather a small officers’ club. There are compelling prosecutorial reasons to wait no longer to launch that investigation. Memories fade, documents disappear, witnesses collaborate on stories.
In addition, the clock is ticking. Consider the context: Trump, the person to whom the public evidence points as the obvious head of the scheme, is currently the most popular figure in the Republican Party, teasing his plans to run in the 2024 presidential election. If Republicans take over one or both houses of Congress a year from now, they will work overtime to reframe as political any investigation and prosecution of the plan’s higher-ups.
In addition, if Trump or an acolyte runs and wins, there will be a new attorney general. How likely is that official to complete a criminal process that his or her predecessor started against the former president or his circle?
January 2025 may seem a long way away. But once begun, investigations take months. Should they lead to charges, it is often a year from indictment to trial. In Trump’s case, the record of delays makes that estimate unreliable. And when started, complex trials take months, and appeals can take years.
Justice delayed would be justice subverted.
We hope to see in the coming weeks signs that Garland has initiated a serious investigation of the leaders of the coup attempt, as well as the planners of the Jan. 6 insurrection. America depends on the Justice Department to speak with its actions, exactly as the attorney general stated.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus of constitutional law at Harvard University. Follow him on Twitter @tribelaw. Dennis Aftergut is a former federal prosecutor.