WASHINGTON — The Justice Department’s decision to charge Oath Keepers with seditious conspiracy last week makes clear that prosecutors consider the Jan. 6 attack on the Capitol part of an organized assault to prevent the peaceful transfer of presidential power.
But so far the department does not appear to be directly investigating the person whose desperate bid to stay in office motivated the mayhem — former President Donald Trump — either for potentially inciting a riot or for what some observers see as a related pressure campaign to overturn the results of the election.
The House select committee on Jan. 6 is investigating both matters, separate from the Justice Department, and has aggressively pursued information about Trump and those closest to him. But FBI agents have not, for example, sought to interview or gather materials from some of Trump's most loyal lieutenants about their strategy sessions at the Willard hotel on how to overturn the results of the 2020 election, according to participants in those meetings or their representatives.
The department has not reached out to the Georgia secretary of state's office about Trump urging its leader to "find" enough votes to reverse his defeat, a person familiar with the office said, even as a local district attorney investigates that matter.
The Trump campaign has not received requests for documents or interviews from the FBI or Justice Department related to Jan. 6 or the effort to overturn the election results, and federal prosecutors have not sought to interview those with knowledge of Trump's consideration of a plan to install an attorney general more amenable to his unfounded claims of massive voter fraud, according to people familiar with the matter. The Justice Department inspector general is investigating the aborted plan and could ultimately ask prosecutors to consider whether crimes were committed.
Attorney General Merrick Garland has vowed to hold accountable all those responsible for the Jan. 6 riot — whether they were at the Capitol or committed related crimes. “The actions we have taken thus far will not be our last,” Garland said in a Jan. 5 speech marking the anniversary of the Capitol breach.
But some legal analysts say they worry Garland might be moving too cautiously.
“The other shoe has yet to drop — that is: When will the Justice Department promptly and exhaustively investigate the part of the coup attempt that I believe came perilously close to ending American constitutional democracy, basically, without a drop of blood?” said Harvard Law School Professor Laurence Tribe, a constitutional scholar and outspoken Trump critic.
A spokesman for the D.C. US attorney’s office, which is leading the criminal investigation, declined to comment. A spokesman for Garland pointed to the recent speech, in which the attorney general said the department would “follow the facts” and “must speak through our work.” A spokesman for Trump did not respond to requests for comment.
Most analysts — even those who want more aggressive action — acknowledge that building a viable criminal case against the former president would be challenging.
Investigators might consider exploring whether the president criminally incited the crowd that ultimately marched to and stormed the Capitol on Jan. 6 when he said at the rally preceding the riot: "And if you don't fight like hell, you're not going to have a country anymore."
But such speech could be considered protected by the First Amendment, and Trump is hardly the first politician to call on his supporters to fight.
While Trump told the crowd to march to the Capitol and vowed to join them — even though he had no plans to do so — there is no evidence that he knew they planned to storm the building.
Investigators might also consider whether Trump’s pressure on Georgia’s secretary of state to “find” votes for him — combined with other legal and legislative maneuvering to prevent his loss from being finalized — was part of a criminal conspiracy to impede government functioning. But if Trump genuinely believed the election was stolen from him, it would be hard to construe his contesting the outcome as a crime.
"We better be real careful that we don't start taking political and emotional comments by public figures and try to turn them into the stuff of criminal prosecutions," former federal prosecutor James Trusty said.
Almost from the investigation's outset, Justice Department officials have debated how to proceed in the sprawling and politically sensitive case.
At first, according to people familiar with the matter, a few prosecutors in the D.C. US attorney’s office wanted to use subpoenas and search warrants to go after records of some rally organizers or speakers.
But the FBI, Justice Department officials, and Michael R. Sherwin — who was appointed as the D.C. US attorney during the Trump administration and continued to lead the probe after stepping down from that post — resisted the idea, arguing that they would be trampling on demonstrators’ First Amendment rights, the people said.
Instead, the Justice Department decided to investigate those who were caught on video committing crimes, and see whether they could connect them to higher-level targets.
Prosecutors have so far charged more than 725 people for their roles in their attack, and FBI agents are seeking about 200 more. Although most were not part of planned conspiracies or members of far-right groups, the department has uncovered some more sophisticated plots.
Perhaps most significantly, the FBI on Thursday arrested Stewart Rhodes, founder and leader of the extremist group Oath Keepers, charging him and 10 others with seditious conspiracy. It is the first time prosecutors brought sedition charges in the investigation, even though the D.C. US attorney’s office prepared a memo almost a year ago detailing how such a case could be made.
Prosecutors alleged that Rhodes and his associates planned to stop the transfer of power to President Biden, and armed themselves with weapons and combat gear as they came to Washington from across the country. Analysts said prosecutors will surely use the serious charge to try to persuade Oath Keepers to cooperate in the investigation.
The indictment suggests Rhodes was mindful of what Trump was saying on Jan. 6, although Rhodes appeared to be frustrated by it.
"All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They've had enough," he wrote to a group chat that day, according to the indictment.
Jonathan Moseley, who has been representing Rhodes, said his client had been scheduled to testify before the Jan. 6 House committee next month but now wouldn't be doing so.
"They're not going to get their interview or their documents," he said. "This is sort of a collision between these two inquiries."
Moseley said he has no indication of whether the Justice Department investigation is headed toward Trump but said Rhodes's arrest was notable because he had not been inside the Capitol.
"That line has been crossed," Moseley said.