Inside Garland’s Effort to Prosecute Trump

WASHINGTON — After being sworn in as attorney general in March 2021, Merrick Garland gathered his closest aides to discuss a topic too sensitive to broach in bigger groups: the possibility that evidence from the far-ranging Jan. 6 investigation could quickly lead to former President Donald Trump and his inner circle.

At the time, some in the Justice Department were pushing for the chance to look at ties between pro-Trump rioters who assaulted the Capitol on Jan. 6, 2021, his allies who had camped out at the Willard Hotel, and possibly Trump himself.

Garland said he would place no restrictions on their work, even if the “evidence leads to Trump,” according to people with knowledge of several conversations held over his first months in office.

Sign up for The Morning newsletter from the New York Times

“Follow the connective tissue upward,” said Garland, adding a directive that would eventually lead to a dead end: “Follow the money.”

With that, he set the course of a determined and methodical, if at times dysfunctional and maddeningly slow, investigation that would yield the indictment of Trump on four counts of election interference in August 2023.

The story of how it unfolded, based on dozens of interviews, is one that would pit Garland, a quintessential rule follower determined to restore the department’s morale and independence, against the ultimate rule breaker — Trump, who was intent on bending the legal system to his will.

Garland, 71, a former federal judge and prosecutor, proceeded with characteristic by-the-book caution, pressure-testing every significant legal maneuver, demanding that prosecutors take no shortcuts and declaring the inquiry would “take as long as it takes.”

As a result, prosecutors and the FBI spent months sticking to their traditional playbook. They started with smaller players and worked upward — despite the transparent, well-documented steps taken by Trump himself, in public and behind the scenes, to retain power after voters rejected his bid for another term.

In trying to avoid even the smallest mistakes, Garland might have made one big one: not recognizing that he could end up racing the clock. Like much of the political world and official Washington, he and his team did not count on Trump’s political resurrection after Jan. 6, and his fast victory in the 2024 Republican presidential primary, which has complicated the prosecution and given the former president leverage in court.

In 2021 it was “simply inconceivable,” said one former Justice Department official, that Trump, rebuked by many in his own party and exiled at his Florida estate Mar-a-Lago, would regain the power to impose his timetable on the investigation.

“I think that delay has contributed to a situation where none of these trials may go forward,” Rep. Adam Schiff, D-Calif., said in a recent interview on CNN, citing the Justice Department’s approach as a factor. “The department bears some of that responsibility.”

The Supreme Court’s decision to review Trump’s claims of presidential immunity in the case has now threatened to push the trial deep into the campaign season or beyond, raising the possibility that voters will make their choice between Trump and President Joe Biden in November without Trump’s guilt or innocence being established.

It has resurfaced a question that has long dogged Garland: What took so long?

It would take the department nearly a year to focus on the actions contained in the indictment ultimately brought by Jack Smith, the special counsel Garland later named to oversee the prosecution: systematic lies about election fraud, the pressure campaign on Vice President Mike Pence, the effort to replace legitimate state electors with ersatz ones.

Officials in the Biden White House have long expressed private consternation with Garland’s pace. The select committee established by the House in 2021 to investigate what led to the Jan. 6 riot made it an all-but-explicit goal to force the Justice Department to pursue the case more aggressively, and in Georgia, a local prosecutor was going head-on at Trump’s efforts to overturn his loss even before Garland was sworn in.

People around Garland, who like others interviewed for this article spoke on the condition of anonymity to discuss Justice Department affairs, say there would be no case against Trump had Garland not acted decisively. And any perception that the department had made Trump a target from the outset, without exploring other avenues, would have doomed the investigation.

“Don’t confuse thoughtful with unduly cautious,” said a former deputy attorney general, Jamie S. Gorelick, who sent Garland, then her top aide, to oversee the prosecution of the 1995 Oklahoma City bombing. “He was fearless. You could see it then, and you could see it when he authorized the search at Mar-a-Lago.”

Garland’s allies point to how, by the summer of 2021, the attorney general and his powerful deputy, Lisa O. Monaco, were so frustrated with the pace of the work that they created a team to investigate Trump allies who gathered at the Willard Hotel before Jan. 6 — John Eastman, Boris Epshteyn, Rudy Giuliani and Roger Stone — and possible connections to the Trump White House, according to former officials.

That team would lay the groundwork for the investigation that Smith would take over as special counsel a year and a half later.

But a host of factors, some in Garland’s control, others not, slowed things down.

Department leaders believed that the best way to justify prosecuting Trump and the Willard plotters was to find financial links between them and the rioters — because they thought it would be more straightforward and less risky than a case based on untested election interference charges, according to people with knowledge of the situation. But that conventional approach, rooted in prosecutorial muscle memory, yielded little.

There were also problems inside the part of the Justice Department leading the investigation, the U.S. attorney’s office in Washington. The office was racked by personnel issues and buckling under the weight of identifying and prosecuting Jan. 6 rioters — an investigation that became the largest ever undertaken by the department.

Garland and his team decided early on not to take direct control of the investigation themselves, as the department had done after the Oklahoma City bombing.

And for much of 2021, the U.S. attorney’s office at first prioritized indicting key members of the Proud Boys and Oath Keepers, far-right groups that played a crucial role in the assault, on charges of seditious conspiracy.

Time will tell whether Garland and Monaco made the right calls in the period before they turned the investigation over to Smith, who within eight months brought not only the election-case indictment but the separate charges against Trump for mishandling classified documents.

But like many before them, Garland and his team appear to have underestimated Trump’s capacity for reinvention and disruption, in this case through delay.

A Shaky Start: January to March 2021

On Jan. 6, 2021, Garland was in his attic office in suburban Maryland, drafting remarks he would deliver the next day in Delaware when Biden was to introduce him as his pick for attorney general.

The speech was to center on reestablishing “normal order” after four chaotic Trump years. Garland took a break, clicked on a livestream of rioters breaching the Capitol and realized, in a flash, that he would need to revise not only his speech, but his approach to the job.

He was still fine-tuning his language as his wife drove him to Wilmington the next morning.

The rule of law is “the very foundation of our democracy,” said Garland as Biden, whom he barely knew, looked on.

In February, while Garland awaited Senate confirmation, J.P. Cooney, a veteran prosecutor in the U.S. attorney’s office who ran the group investigating the riot’s ringleaders, drafted a proposal to fast-track elements of the investigation. It would also include seizing the phone of Stone, a longtime Trump associate who was part of the group that had been camping out at the Willard Hotel before Jan. 6 strategizing about how to keep Trump in office.

The FBI and Justice Department balked at Cooney’s plan.

Cooney had prosecuted Stone in 2019 for obstructing a congressional investigation, only to have Trump appointees intervene to reduce the sentence — before Trump wiped it away. Some at the department worried Cooney might be trying to settle unfinished business, according to two former officials who now believe those doubts were misplaced.

For the next several months, the Willard inquiry, led by Cooney, took a back seat to another high-profile, high-risk effort: drafting novel seditious conspiracy charges against the leaders of the Oath Keepers and Proud Boys for their roles in the Capitol attack.

Moving Up the Ladder: April to October 2021

Garland, like most attorneys general, did not weigh in on day-to-day decision-making. Instead, he would transmit his preferences on the Jan. 6 investigations every Thursday evening during a briefing with a half dozen aides. The team included L. Rush Atkinson, a senior counselor to Garland whose work for special counsel Robert Mueller offered valuable insight.

The meetings often lasted hours as Garland rattled off questions. One early query: Had Trump made incriminating statements during an Oval Office meeting in December 2020 when his team discussed overturning Biden’s electoral victory?

Monaco, 56, a former national security official in the Obama White House, was confirmed in April 2021. While she embraced her boss’s cautious, stepwise approach, she also had a keener awareness of political optics and was so trusted by Biden’s transition team she was chosen for her job weeks before Garland was selected for his.

She made it clear that the Willard investigation was a priority.

Anxiety about the investigation was growing among some prosecutors in the U.S. attorney’s office, some at Justice Department headquarters and eventually in the White House.

Then came a public warning shot. On June 30, the Democratic majority in the House voted to create a Jan. 6 committee, with teams assigned to investigate the fake electors plot and Trump’s effort to overturn the election.

This was no bottom-up, follow-the-money exercise: They aimed straight for Trump’s inner circle, issuing one of their first subpoenas to his final chief of staff, Mark Meadows. By late in the year, the committee was making clear that one of its goals was to force Garland to bring more urgency to the Justice Department investigation, suggesting it could make a criminal referral to the department on election interference charges.

Justice Department officials vehemently deny that external pressure spurred them to move faster and maintain that their decisions were prompted solely by the collection of evidence.

Nonetheless, their pace accelerated.

By the third week of June 2021, Garland had decided investigators had accumulated enough evidence to justify channeling more resources into the Willard investigation, according to people with knowledge of the situation.

Internal communications showed that Oath Keepers leaders were trying to contact the White House in the days leading up to the attack. Giuliani, whose phones had been seized by the FBI in April in an unrelated investigation, seemed to be involved. Department leaders were recognizing that a Trump Justice Department official, Jeffrey Clark, whose pivotal role had already been well documented in news reports months earlier, was a central figure.

But the U.S. attorney’s office, which was supposed to be coordinating the investigation, did not have the bandwidth to do it, in Garland’s view, according to people he spoke with.

He groused about a lack of updates on the inquiry. During one meeting, an impatient Monaco interrupted prosecutors to ask, “OK, but where are we going to be on all this by Labor Day?”

In late June, Garland, Monaco and several aides decided they needed to take a dramatic step: creating an independent team, separate from Cooney’s original group, tasked with investigating the Willard plotters, with no restriction on moving up the ladder to Trump if the evidence justified it.

They did not want too many people knowing about it. So they gave it a vanilla name: the “Investigations Unit.”

Then things appear to have stalled.

Many veteran prosecutors were already being deployed on rioter cases, and recruiting for the team took longer than expected. In the meantime, Monaco turned her attention to reorganizing an overwhelmed U.S. attorney’s office in Washington, according to former officials.

Garland worked in a corner office, deliberating on an issue that was critical but not directly focused on Trump: whether to employ the symbolically powerful but little-used seditious conspiracy law against the leaders of the Proud Boys and the Oath Keepers. After weeks of internal debate, he signed off.

The investigations unit would not begin operating until November 2021, more than four months after its creation.

The Turning Point: October to December 2021

The man selected to run the unit was Thomas P. Windom, a career federal prosecutor in Maryland who had recently notched a pair of impressive victories in high-profile cases against white supremacists.

Windom was aggressive, tight-lipped and, in Garland’s view, somewhat impervious to partisan attacks — his father had been the Republican lieutenant governor of Alabama.

His arrival is now regarded as a major turning point. Back then, it was not clear to his colleagues what he was supposed to be doing.

Windom showed up at the U.S. attorney’s office without any fanfare or much explanation. He did not even have an office. Few of his new colleagues knew who he was. Agents in the FBI’s field office learned of his existence when he began requesting files.

He was vague about his mission and chipper, if a bit chilly — with a habit of correcting people who called him “Tom” instead of “Thomas.” But it soon became clear that Windom was asking big-picture questions about Trump and his circle, and that he had the support of the department’s leaders.

He adopted the follow-the-money directive used in most organized crime and white-collar cases, including the Enron prosecution of the early 2000s that defined Monaco’s early career.

Yet the deeper prosecutors dug, the less about money they seemed to find.

It had initially appeared that the Proud Boys and Oath Keepers, in cahoots with some in Trump’s circle, bankrolled travel and lodging for allies, with the intention of blocking certification of the election. Windom was intent on finding out whether Stone and Infowars founder Alex Jones were involved in a broader funding conspiracy, according to people familiar with the situation.

The reality was more mundane. Most rioters drove themselves to Washington, paid their airfare and hotel bills out of pocket, slept on couches, or set up crowdfunding sites.

As the year came to a close, the department’s leadership had no alternative but to steer the investigation into choppy, uncharted waters: They shifted focus to election fraud.

End Game: January to November 2022

In January 2022, Garland announced his intention to pursue anyone involved in Jan. 6 “whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” Monaco publicly confirmed the department was investigating the mailing of fake elector certificates.

Behind the scenes, Windom had begun joining with investigators from other agencies, including the Postal Service, to track the trail of fake electors. He also teamed up with the Justice Department’s inspector general who had begun investigating Clark.

Until that point, the FBI had mostly remained on the sidelines, leaving much of the initial work to state officials. But by late 2021, Paul Abbate, the FBI deputy director, told senior law enforcement officials that the bureau was, in general, supportive of the inquiry.

Then Windom’s former boss in Maryland, Jonathan Lenzner, was named as chief of staff to FBI Director Christopher Wray, giving the prosecutor a direct line to the highest echelons of the bureau. Wray also instructed deputies to ensure that Windom had everything he needed.

By April, the Washington field office finally drafted an investigative memo required to open the fake electors case, with Wray and Garland signing off.

The first telltale signs Windom was homing in on Trump and the half-dozen allies who would later be listed in the indictment as uncharged co-conspirators was a series of subpoenas issued by a grand jury in Washington.

Over the next few months, federal agents and prosecutors obtained search warrants and seized the phones of Clark and Eastman as well as Epshteyn and Mike Roman, a campaign strategist who was the director of Election Day operations for the Trump campaign in 2020.

It is not clear when Garland formally approved the investigation of Trump. But Windom’s team began issuing subpoenas, including a request for presidential phone logs, schedules and drafts of speeches by May 2022, and possibly sooner. By the summer, the department was directly asking witnesses about the president’s actions.

But by this time, Trump’s strategy of block and delay was being deployed. The process was slowed by the necessities of dealing with complex legal issues, in particular claims of executive privilege and attorney-client privilege when it came to material on the seized phones of Trump’s allies. The Justice Department set up a secret team of prosecutors, eventually employing more than a dozen lawyers to review the potentially protected materials, including emails.

It was known internally by the code name “Coconut” and, according to people familiar with the planning, led by a prosecutor from Portland, Oregon, who was the only person authorized to talk to Windom’s team.

The department’s actions, significant and far-reaching as they were, were overshadowed by the Jan. 6 committee in the summer of 2022, which presented a firsthand and well-documented narrative of the effort to overturn the election.

Prosecutors, accustomed to working in the shadows and at their own pace, watched some potential witnesses answer questions on camera.

Garland has said, time and again, that the hearings had no impact on the Trump investigation. The department was motivated only by the need to “get it right,” which entailed “imagining the mistakes that we could make, and making sure that we don’t make them,” as he told a bar association conference recently.

But the pressure was clearly building. What Windom’s team wanted most were hundreds of raw transcripts of committee interviews, something the panel refused to turn over quickly.

The committee did not immediately make a criminal referral, but members were hardly shy about passing the torch to Garland. “The Justice Department doesn’t have to wait,” Rep. Liz Cheney, R-Wyo., a vocal advocate of prosecuting Trump, said at the time.

But wait it would. Windom’s team was hitting legal roadblocks set up by Trump and his allies. An intense series of legal battles would play out over the ensuing months with 25 witnesses called by the federal grand jury in the case. Those witnesses asserted executive privilege or other reasons for not testifying — by far the most time-consuming and frustrating element of the investigation, in the view of current and former officials.

There was another surprise. Despite the blockbuster hearings by the House panel, Trump was gaining political strength. On Nov. 15, 2022, he formally announced that he would be a candidate to recapture the presidency.

Three days later, Garland, following rules intended to insulate political appointees from accusations of election interference, announced his selection of Smith as a special counsel. By now, the department was in a race for time.

A few weeks earlier, Smith was driven into the department’s cobbled courtyard and whisked up to Garland’s office, where he was asked how quickly he could start.

Smith let Garland know he wanted to move fast, and signaled his intention to enlist Windom, which would save time and effort.

After returning to The Hague, where he served as a war crimes prosecutor, Smith was struck by a scooter while biking and fractured his leg. For a few anxious days, there was serious concern whether he would recover in time to take the job. But he rallied and was in Washington by Christmas, leg propped on a walker.

About seven months later, Windom, a half-smile on his face, took the measure of Trump, who scowled at him across a scuffed courthouse table as he was arraigned on charges of plotting to subvert the peaceful transfer of power.

Smith watched from a nearby bench, occasionally peeking at the clock on the wall.

c.2024 The New York Times Company

Source link

About The Author

Scroll to Top