Merrick Garland
Attorney General Merrick Garland speaks at the Department of Justice in Washington, Wednesday, Jan. 5, 2022, in advance of the one year anniversary of the attack on the U.S. Capitol. (AP Photo/Carolyn Kaster)

Timing is everything. When it comes to free and fair elections and ensuring that Donald Trump and fellow authoritarians do not pull off a successful coup, we are nearly out of time. At least 19 states have added laws that make it more difficult to vote, according to the Brennan Center for Justice, and 49 state legislatures are considering voting restrictions, including, most ominously, measures that would take election management out of the hands of secretaries of state and hand it over to GOP-controlled legislatures. We have until November 8 to fix this.

The prosecution of the former president is on a slower timeline. This includes not only the criminal investigations being pursued in Georgia by the Fulton County district attorney, and in New York by the state attorney general and the Manhattan district attorney, but also any investigations emanating from the U.S. Department of Justice. But that’s okay; Merrick Garland is no longer the problem or the solution.

I came to this conclusion after Attorney General Garland delivered a much-hyped speech commemorating the anniversary of the January 6 attack on the Capitol. After considering his words, I opened a calendar and did the math. We’ll get to that math in a moment. But first, let’s be clear about what Garland did and didn’t promise.

After watching his talk and then reading the prepared remarks published on the DOJ website, I have this take: I fully trust Garland to prosecute Trump in connection with the events directly leading up to and surrounding the certification of the electoral vote on January 6. But I’m less sure how much Trump mischief that will include.

Why do I believe DOJ is currently investigating the former president? Some doubt it. There have been no leaks to the press. By comparison, the Select Committee to Investigate the January 6th Attack on the United States Capitol has been less circumspect. Committee members, including Republican Representative Liz Cheney, have made it clear that they are examining Trump’s legal culpability on a number of grounds. Garland will have access to whatever the committee uncovers, including the report they plan to issue as early as this summer. And if the panel, chaired by Representative Bennie Thompson, makes criminal referrals to DOJ, committee staff will turn over the evidence they have gathered. 

In such a referral, the committee might reference several statutes that DOJ can use to prosecute the former president and others, including obstruction of an official proceeding, conspiracy, and seditious conspiracy. They might also use the wire fraud statute to charge those who raised funds off the Big Lie. (As an aside, three private lawsuits for monetary damages under the Ku Klux Klan Act have already been brought, respectively, by two Capitol Police officers, Representative Eric Swalwell, and ten House Democrats against Trump in connection with the insurrection. The KKK Act was successfully used by nine plaintiffs injured in Charlottesville, Virginia, in 2017 to secure a $25 million verdict against neo-Nazi planners of the “Unite the Right” rally responsible for the violence.)

The seditious conspiracy statute provides that “if two or more persons . . . conspire to overthrow, put down, or to destroy by force the Government of the United States . . . or by force to prevent, hinder, or delay the execution of any law of the United States, they can be fined and imprisoned for up to twenty years.” While seditious conspiracy is a rarity (according to LawFare, the last time it was used was 2010, and before that only three times in the past 20 years), just this week, the DOJ arrested and charged the leader of the Oath Keepers with seditious conspiracy for organizing a plot to storm the Capitol. The other offenses are more bread-and-butter. Proving obstruction of an official proceeding is easier than it sounds, given that the offense doesn’t just include successful actions but also punishes those who influence or impede an official proceeding or even just attempt to do so. The trickier part is proving that the Joint Session of Congress constituted an “official proceeding” (although in a civil case in December, one federal judge ruled that it qualifies). Proving the existence of a conspiracy can be difficult, as evidence of an agreement would need to be shown, though juries can draw inferences from behavior and testimony without a smoking gun. 

Conspiracy is a powerful charge. And it looks like the January 6th committee is closely examining the facts to see if they line up. As sources told Hugo Lowell of The Guardian, the committee is exploring whether “Trump oversaw an unlawful conspiracy that involved coordination between the ‘political elements’ of the White House plan communicated to Republican lawmakers and extremist groups that stormed the Capitol.” 

Solid evidence of Trump leading a criminal conspiracy would be earth-shattering. As illuminated in 1946 by the Supreme Court in Pinkerton v. United States, conspiracy members can be held criminally responsible for the substantive acts committed by other members that were done in furtherance of the conspiracy, within the scope of its unlawful project, and that could be reasonably foreseen as a “necessary or natural consequence of the unlawful agreement.” This includes criminal acts that a co-conspirator didn’t even know about, let alone partake in. For example, if trespassing, smashing windows, and physical violence furthered the object of the conspiracy and were within the scope of an unlawful project (such as obstructing an official proceeding), then someone who was a member of that conspiracy who was watching on television—say, from the dining room next to the Oval Office—could be charged and convicted of those offenses. 

Why do I trust Garland now, when I have been so critical of him in the past—like when he dropped the ball on the Mueller report, took Trump’s side against E. Jean Carroll and her defamation suit over the sexual assault she says Trump inflicted on her, and failed to bring charges against Trump for the Stormy Daniels payoffs? Because words matter to Garland. The 69-year-old former jurist and prosecutor never publicly promised to pursue the Mueller report’s obstruction charges or any of those other matters. This is different. He spoke this time. Plus, Justice Department officials historically have a record of making speeches about enforcement priorities and following up. For example, when a high-level DOJ lawyer and then the deputy attorney general recently gave speeches about corporate criminal accountability, they followed those words with actions.

And, in days after Garland’s speech, we saw some interesting maneuvers. Reporting this week from The New York Times indicates that the DOJ is piecing together evidence that could show the existence of a conspiracy to intimidate Vice President Mike Pence as a method to obstruct the official proceeding of certifying the electoral votes. As the Times reported, there are “some early indications that federal prosecutors working on charging the Capitol rioters are looking carefully at Mr. Trump’s pressure on Mr. Pence.” Notably, some defendants are signing sworn statements indicating that “they stormed the Capitol believing that Mr. Trump wanted them to stop Mr. Pence from certifying the election.”

Take Gina Bisignano as an example. This Beverly Hills beautician said she marched to the Capitol, then encouraged and helped other protesters to smash a window after she heard Trump tell Pence “to do the right thing.” Bisignano filmed herself saying, “We are marching on the Capitol to put some pressure on Mike Pence.” She pleaded guilty to seven charges, including obstruction of an official proceeding, and disorderly and disruptive conduct in a restricted building or grounds. In theory, if Trump were found to be part of a conspiracy to obstruct an official proceeding, the object of which was to intimidate Pence into refusing to certify the vote, then he could be charged with the crimes that people like Bisignano committed to further that conspiracy. However, there are still more pieces of the puzzle, like proving an agreement, establishing the objective of the conspiracy, determining who was a member, and so on.

So it’s likely that Garland will go after Trump. But why is it taking so long, and why are those who are already sentenced getting such light punishment? Garland explained: “In charging the perpetrators, we have followed well-worn prosecutorial practices. Those who assaulted officers or damaged the Capitol face greater charges. Those who conspired with others to obstruct the vote count also face greater charges.” Could this include the former president? Maybe. Here we get into angels-waltzing-on-a-pin nuance. Garland’s phrase “obstruct the vote count” could apply to just the events of January 6 and leaning on Mike Pence. Yet it may not be broad enough to include Trump’s frantic efforts to pressure state officials before that, between Election Day and December 14, when the electors in 50 states and the District of Columbia voted.

In other words, Garland’s promises are real but narrow: “Those involved must be held accountable.” Involved in what? What preceded that statement was a detailed description of the violent attack on the Capitol building. What Garland conspicuously left out was any discussion of Trump’s broader efforts to overturn the election. There is no word on how Trump’s pressuring of Georgia Secretary of State Brad Raffensperger to find the votes fits in or his pressure on Michigan voting officials. Garland did not mention the scheming between the former president and Justice Department Attorney Jeffrey Clark to overturn the election.

If we believe that Garland will follow the evidence that the DOJ and the committee uncover, that still leaves us with a grim calendar. With Trump, you want a prosecution before he can be pardoned by a new president and before GOP-enacted voting restrictions expand in the states this year. That seems unlikely at best. Consider this. On December 10, 2008, Bernie Madoff confessed to his sons that he’d been running what he said was a $50 billion Ponzi scheme. The following day, after the sons turned him in, the federal authorities arrested him. He waived his right to a grand jury, and he did not appeal his prison sentence. It still took until June 2009 for him to be sentenced. 

That’s the fastest path from admission to sentencing we could imagine. But it will be a long slog with Trump, assuming there’s even an indictment. You’ll see the indictment challenged, witnesses refusing to testify. You’ll have delays getting a trial on the docket in a pandemic. And Trump is likely to turn every evidentiary hearing into a constitutional showdown over the presidency, delaying things further. 

Even with a summer indictment of Trump, it might be challenging to get a trial before mid-2024. But that’s not the worst news. Let’s assume for a moment that Trump is charged, tried, and convicted by summer 2024. If the Republicans continue rigging the laws in the critical swing states, they might be able to block a Democratic presidential candidate who wins both the popular and Electoral College vote from taking office. Any Republican who becomes president in 2025 could pardon Trump or call off the dogs and settle with him. 

That said, the revelation this week that Trump’s attorneys have met directly with the Fulton County DA is intriguing. The DA is looking into the blatant pressure on Raffensperger to change the vote. In Georgia, the state pardon board, not the governor—in this case Republican Brian Kemp—needs to approve any pardons.

This brings us to a hard reality. The most important part of Garland’s speech is, sadly, the part that most are ignoring, his pivot to voting rights legislation, which a lot of reporters must have seen as boilerplate: “The Department of Justice will continue to do all it can to protect voting rights with the enforcement powers we have. It is essential that Congress act to give the department the powers we need to ensure that every eligible voter can cast a vote that counts.” Garland is right on this point. We can debate whether the attorney general dropped the ball at various times, but whatever he chooses to do now, and whatever the prosecutors in New York and Georgia can deliver, democracy is in the hands of the U.S. Senate.

Jennifer Taub

Jennifer Taub is a law professor and author of Other People’s Houses (about the 2008 financial crisis) and Big Dirty Money. Follow Jennifer on Twitter @jentaub.