For The Good Of The Country
Yesterday’s opus by Carol Leonnig and Aaron Davis, FBI Resisted Opening Probe Into Trump’s Role In Jan 6 For More Than A Year is worth reading in full. But basically what they are saying is that the FBI dragged its feet on the most clear and present danger American Democracy has faced since the Civil War. They went after the foot soldiers, but not Trump or his advisors who had orchestrated the insurrection and attempted coup. Leonnig and Davis reported that “more than a year would pass before prosecutors and FBI agents jointly embarked on a formal probe of actions directed from the White House to try to steal the election. Even then, the FBI stopped short of identifying the former president as a focus of that investigation. A wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace. Garland and the deputy attorney general, Lisa Monaco, charted a cautious course aimed at restoring public trust in the department while some prosecutors below them chafed, feeling top officials were shying away from looking at evidence of potential crimes by Trump and those close to him.”
The effort to investigate Trump over classified records has had its own obstacles, including FBI agents who resisted raiding the former president’s home. But the discovery of top-secret documents in Trump’s possession triggered an urgent national security investigation that laid out a well-defined legal path for prosecutors, compared with the unprecedented task of building a case against Trump for trying to steal the election.
Whether a decision about Trump’s culpability for Jan. 6 could have come any earlier is unclear. The delays in examining that question began before Garland was even confirmed. Sherwin, senior Justice Department officials and Paul Abbate, the top deputy to FBI Director Christopher A. Wray, quashed a plan by prosecutors in the U.S. attorney’s office to directly investigate Trump associates for any links to the riot, deeming it premature, according to five individuals familiar with the decision. Instead, they insisted on a methodical approach— focusing first on rioters and going up the ladder.
…In the weeks before Jan. 6, Trump supporters boasted publicly that they had submitted fake electors on his behalf, but the Justice Department declined to investigate the matter in February 2021, The Post found. The department did not actively probe the effort for nearly a year, and the FBI did not open an investigation of the electors scheme until April 2022, about 15 months after the attack.
…Inside Justice, however, some have complained that the attorney general’s determination to steer clear of any claims of political motive has chilled efforts to investigate the former president. “You couldn’t use the T word,” said one former Justice official briefed on prosecutors’ discussions.
…[T]here were consequences to moving at a slower pace. For many months after the attack, prosecutors did not interview White House aides or other key witnesses, according to authorities and attorneys for some of those who have since been contacted by the special counsel. In that time, communications were put at risk of being lost or deleted and memories left to fade.
…[A] group of prosecutors led by J.P. Cooney, the head of the fraud and public corruption section at the U.S. attorney’s office, argued that the existing structure of the probe overlooked a key investigative angle. They sought to open a new front, based partly on publicly available evidence, including from social media, that linked some extremists involved in the riot to people in Trump’s orbit— including Roger Stone, Trump’s longest-serving political adviser; Ali Alexander, an organizer of the “Stop the Steal” rally that preceded the riot; and Alex Jones, the Infowars host.
…“A decision was made early on to focus DOJ resources on the riot,” said one former Justice Department official familiar with the debates. “The notion of opening up on Trump and high-level political operatives was seen as fraught with peril. When Lisa and Garland came on board, they were fully onboard with that approach.”
Some prosecutors even had the impression that Trump had become a taboo topic at Main Justice. Colleagues responsible for preparing briefing materials and updates for Garland and Monaco were warned to focus on foot soldiers and to avoid mentioning Trump or his close allies.
…In the meantime, public knowledge of the actions in the White House that precipitated Jan. 6 was building rapidly. A book by The Post’s Bob Woodward and Robert Costa detailed a memo by Trump legal adviser John Eastman purporting to show a legal basis for Pence to block the certification of Biden’s win on Jan. 6. It called for the vice president to rely on fake slates of electors for Trump from seven states to declare that the election outcome was in dispute. A separate Post story also revealed numerous details of a “war room” that Trump’s closest advisers had been running out of the Willard hotel. The president’s backers used the space as a hub to push members of state legislatures to take steps to support Eastman’s plan, and to urge Pence not to certify the results.
Inside the U.S. attorney’s office and at Main Justice, prosecutors noticed the developments and grew troubled that the office was still putting too few resources into probing evidence of a broad, Trump-led conspiracy to overturn the election.
…That fall and winter, a House committee pursuing its own investigation into Jan. 6 conducted interviews with top Trump administration officials. Privately, its chief investigator, Timothy Heaphy, a former U.S. attorney, had alerted prosecutors in the D.C. U.S. attorney’s office to a few details his team had uncovered about Trump’s pressure on Justice Department officials and Pence to block the election results, according to a person familiar with the exchanges. But eye-grabbing news accounts about the committee’s discoveries fueled public criticism that the Justice Department appeared to be lagging.
On Jan. 13, 2022, the department indicted Rhodes and 10 other Oath Keepers on charges of seditious conspiracy. It did not quiet the criticism, but instead put a spotlight on signs the Justice Department was not, in comparison with the House committee, working as actively to investigate Trump’s role in the attempted coup.
Politico had reported that week that the House committee had demanded and received documents from several states about fake electors as well as other efforts Trump advisers had taken to pressure state officials ahead of Jan. 6. A wave of news reports and commentary followed, including by MSNBC’s Rachel Maddow, who devoted several nights of her show to reporting on clues that suggested Trump allies ran a coordinated scheme to try to overturn the election.
In the last of those episodes, on Jan. 13, Michigan Attorney General Dana Nessel (D) announced that she had referred the matter of fake electors to federal prosecutors— that day. She called the scheme “forgery of a public record” under Michigan law but said the Justice Department would be best suited to prosecute a multistate effort.
About two weeks later, on Jan. 25, Monaco was asked during a televised interview about indications that the fake electors scheme had been coordinated by Trump allies. Monaco hinted there was an investigation underway.
“We’ve received those referrals,” Monaco said on CNN. “Our prosecutors are looking at those. I can’t say anything more on ongoing investigations.”
…In April 2022, more than 15 months after the attack, Wray signed off on the authorization opening a criminal investigation into the fake electors plot.
Still, the FBI was tentative: Internally, some of the ex-president’s advisers and his reelection campaign were identified as the focus of the bureau’s probe, but not Trump.
On June 21, 2022, the House select committee held a nationally televised hearing on fake electors— a topic the committee had, in contrast to the Justice Department, identified early on as a major target for investigation. Testimony revealed what the committee had learned in nine months: The Trump campaign had requested that fake elector documents be flown to D.C. in time to help pressure Pence. The Republican speaker of the Arizona House, Russell “Rusty” Bowers, hushed the chamber, saying Giuliani had contacted him to try to remove Biden’s electors in his state. “He pressed that point, and I said, ‘Look, you are asking me to do something that is counter to my oath,’” Bowers said.
That day, FBI agents delivered subpoenas about electors for Trump to state lawmakers in Arizona. The next day, agents served subpoenas to people who signed documents claiming to be Trump electors in Georgia and Michigan.
Near the end of July, the Justice Department investigation into Trump’s orbit gained new speed.
…In late May, members of Trump’s legal team began bracing for Smith to bring charges in his other line of investigation. On June 8, a grand jury in Miami endorsed Smith’s evidence that Trump kept and withheld top-secret documents, indicting Trump.
On Tuesday, as Trump pleaded not guilty to those charges in federal court in Miami, Smith’s investigation into efforts to steal the election continued: Michael McDonald and Jim DeGraffenreid, the chairman and vice chairman of the Nevada Republican Party who had signed a document claiming to be electors for Trump, entered the area of the D.C. federal courthouse where a grand jury has been meeting on cases related to Jan. 6.
Today, you’re far more likely to hear people— everywhere but on DWT— talking about pardoning Trump than executing him. If 100% of his fortune is confiscated and his family is beggared and he is dragged before a televised firing squad— future presidents are unlikely to try what he tried. Otherwise… they will. Yesterday, Damon Linker wrote about why a pardon is such a terrible idea. He was as dismissive of the conservatives’ nonsense about pardons as we have been, from Marc Thiessen’s and Danielle Pletka’s moronic and repulsive call for Biden to pardon the traitor without a trial to Rich Lowry’s laughable call for a future GOP president to drain the poison from the system, which is exactly what a firing squad would do in my opinion.
Thiessen and Pletka wrote that “In pardoning Trump, Biden would be a true statesman. Sparing the country the ordeal of a trial would go a long way toward repairing the nation’s frayed political fabric. [Biden] would display the kind of leadership that has been missing in Washington. And he would drive Trump crazy. With one action, Biden would eliminate the narrative of a ‘deep state’ conspiracy that is helping to fuel Trump’s political comeback.” I’m old enough to remember that same crap when the Deep State decided to let Nixon off scott-free but didn't-- despite what Lawry plagiarized-- “put a particularly ‘noxious chapter’ in our nation’s history behind us.”
Linker wrote that “both opinion columns make the mistake of viewing the latest Trump indictment in isolation from the broader context of Trump’s legal difficulties. Those difficulties are extremely sweeping and serious— and no pardon from a president, whether it’s granted by Biden before November 2024 or a Republican commander-in-chief after January 20, 2025, can make them disappear. For that reason, a pardon in the classified documents case will do little to protect the country from its ongoing Trump threat. Both op-eds concede that (in the words of Thiessen and Pletka) ‘the case against Trump is damning.’ This is true.
As Lowry admits, “usually someone asks for a pardon, and expresses remorse for their wrongdoing.” Yet neither is at all likely in Trump’s case, because the former president believes himself to have done nothing wrong and to be the victim of unjust harassment by political enemies.
It is nonetheless the case that, if issuing a pardon could spare the country the turbulence sure to follow from trying, convicting, and sentencing to prison a former resident of the White House currently campaigning to return there, doing so might be worth it—even if the alleged criminal expresses no contrition.
There’s just one problem, however. Pardoning Trump for the actions that led to the 37-count indictment in the classified-documents case would do nothing to clear him of the charges that have already been brought against him by Manhattan District Attorney Alvin Bragg. Or the potential charges he faces in Fulton County, Georgia related to his efforts to strongarm Georgia’s secretary of state to “find” votes that would flip the state to Trump in the 2020 election. Or, potentially gravest of all, the charges that could grow out of Smith’s still-ongoing investigation into Trump’s words and deeds leading up to and throughout the insurrectionary riot on Capitol Hill during the afternoon of January 6, 2021.
That’s a grand total of four possible indictments— two federal and two at the state level. Several things follow from this array of charges. First, even if a present or future president pardoned Trump for the charges connected to his mishandling of classified documents, a separate pardon would need to be granted for any future federal charges connected to January 6. Since the latter case would concern something that looks very much like a self-coup attempt, however ineptly executed, on the part of a sitting president, issuing such a pardon without at least an admission of guilt and expression of remorse from the accused would be ill-advised. Any pardon granted without such an admission of guilt and expression of remorse would have the effect of exonerating Trump for his actions after the 2020 election, thereby demonstrating to Trump himself or other potential bad actors that acts of outright electoral subversion and defiance of the peaceful transfer of power can be undertaken without fear of legal retribution.
But even if such a second pardon were granted, Trump would still be facing a trial in New York and a possible indictment in Georgia, each of which could lead to conviction and jail time. And in these cases, there would be no possibility of a presidential pardon, since the pardon power enumerated in Article II of the United States Constitution only applies to federal crimes. (Whether Trump could be pardoned by state officials in New York or Georgia is another matter. Though as this helpful Politico story explains, it isn’t especially likely in either state.)
If Republican voters (egged on by demagogic rabblerousers in the media and elective office) are convinced Trump is being unfairly targeted, I can’t imagine them being placated by seeing him receive two presidential pardons for federal crimes and yet still facing possible trial, conviction, and imprisonment in other jurisdictions.
The country is walking a dangerous road, with potentially dire consequences. But as much as we might wish that Joe Biden or a future Republican president could simply use the pardon power to drain the “poison out of the system,” in Lowry’s words, there is no such magic wand. Donald Trump got himself into each of these legal messes, and his fate will now ultimately be decided by judges and juries— just as our collective political fate will be determined to a large extent by how Trump and his most devoted supporters respond to these outcomes.
The only way out is through.
