The Justice Department investigation into January 6
Last January, Garland announced that the Justice Department has “
no higher priority” than its investigation into the January 6 attack on the Capitol, and that his department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.”
According to the Justice Department,
more than 830 individuals have been charged for alleged criminal activity relating to the January 6 attack on the Capitol. And, if anything, DOJ appears to be stepping up these prosecutions. Last May, as part of its annual budget proposal, the Justice Department
sought to hire 131 more lawyers to prosecute cases related to this attack.
Garland’s appointment of Smith
won’t affect those investigations into the rioters. But Smith
will be looking into “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or with the certification of the Electoral College vote held on or about January 6, 2021.”
It remains unclear just how closely that investigation is actively investigating Trump’s own role, however — and, if so, how close it is to an indictment against the former president. And the Justice Department is likely to keep an even tighter hold on any information regarding such an investigation into Trump than it has on the Mar-a-Lago investigation. Bear in mind that virtually no one outside of the Justice Department,
including purportedly the White House, knew about the FBI’s impending search of Mar-a-Lago until after it had begun.
There is, however, at least
one outward sign that Trump is under investigation. Last May, prosecutors subpoenaed the National Archives for the same Trump administration documents that the Archives already turned over to the US House committee investigating the January 6 attack.
While the Justice Department is unlikely to say much about whether Trump could be indicted for January 6-related crimes until after such an indictment takes place, both congressional and judicial officials have indicated that Trump most likely violated at least two federal criminal statutes during his efforts to overturn the 2020 election — one protects Congress from interference, and the other prohibits conspiracies to defraud the nation.
We know that from a lawsuit Trump lawyer John Eastman filed last January in a federal court in California, seeking to prevent the House January 6 committee from obtaining certain emails sent or received by Eastman. Among other things, Eastman claimed that the emails were protected by attorney-client privilege.
Ordinarily, communications between a lawyer and their client are protected from disclosure. But, as a federal appeals court has explained, “communications are not privileged when the client ‘consults an attorney for advice that will
serve him in the commission of a fraud’ or crime.” And the January 6 committee argued that Trump may have consulted Eastman in order to violate two criminal federal laws.
One of these laws makes it a crime to
obstruct Congress’s official business, while the other makes it a crime to
conspire to defraud the United States. The first carries a maximum penalty of 20 years in prison, while the other calls for a maximum sentence of five years.
Ultimately, Judge David Carter agreed that Trump most likely violated both laws. Among other things, Carter wrote, “Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.” The judge added that “
the illegality of this plan was obvious.”
Of course, if Trump is eventually indicted for violating either statute, the Justice Department will carry a heavier burden than the January 6 committee had to overcome in order to convince Judge Carter that some of Eastman’s emails were not privileged. Trump, like any criminal defendant, will be entitled to a jury trial. And the Justice Department will have to prove its case beyond a reasonable doubt.
But Carter’s opinion suggests that there is at least some low-hanging fruit that the Justice Department can pick if it decides to bring criminal charges against Trump.
Keeping track of all the criminal investigations of Trump isn’t easy, so we did it for you.
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