Attorney General Merrick Garland speaks during an event. A new Washington Post report examines why more than fifteen months elapsed before the Justice Department began investigating Donald Trump’s role in the January 6 insurrection. (Evelyn Hockstein/Pool Photo via AP)

While burnishing his reputation as a patient institutionalist, Attorney General Merrick Garland protected Donald Trump for over a year, delaying a critical investigation into one of the most significant crimes ever committed in our nation’s history. Despite the clear-as-day evidence that the 45th president “more likely than not” obstructed the Joint Session of Congress on January 6, 2021, to prevent the counting of the electoral votes and sought to steal the election, Garland stalled. According to the Washington Post, even hinting that it was time to investigate, Trump was verboten. “You couldn’t use the T word,” insiders said, referring to Trump. Garland’s timidity bothered several of his prosecutors. Further, it delayed a formal investigation by the DOJ and FBI into Trump’s role until April of 2022, fifteen months after the attack on the Capitol. 

The Washington Post offers critical reporting about why Garland waited so long, and it does not reflect well on the attorney general. As Carol D. Leonnig and Aaron C. David report, the Justice Department’s leaders set the pace and ignored the pleas of experienced prosecutors: “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.”  

Where’s the logic there? If the department’s reputation was sullied by the leadership of Jeff Sessions, Bill Barr, and the assorted acting attorneys general, then how would it be possible to restore public trust by following their same policies, particularly the practice of protecting Trump?  

I became enraged reading the Post article. When anger floods my senses, I smile serenely and measure my words carefully, as many women have been socialized to do. When I bristle beneath that façade, I turn to the keyboard. This writing habit keeps my resting heart rate low. On this Juneteenth morning, my Fitbit reports a relatively calm 63 beats per minute. 

According to the Post, Garland’s delay stemmed from factors including “wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him.” Really? We all knew on January 6 that Trump had encouraged the insurrectionists, taking his sweet time before asking them to stand down. We also learned that leading up to that day, Trump had badgered GOP officials, including the vice president. Garland could have appointed a special counsel within moments of his confirmation. After all, the former president had been impeached in the House for a second time over the coup attempt, with some Senate Republicans finally breaking ranks and voting to convict. 

Those willing to acknowledge Garland’s lackadaisical pace lay most of the responsibility at the feet of Michael R. Sherwin, then-acting U.S. attorney for the District of Columbia. The Post notes, “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.”  

Let’s unpack that. First, the decision to delay a Trump-focused inquiry occurred in the brief period between January 6 and March 11, 2021, when Garland’s nomination was being considered. It is not as though Garland, once confirmed, was prevented from revisiting that decision. Second, the FBI director is responsible to the attorney general, not vice versa. The FBI website makes this reporting structure crystal clear. If Garland had requested that Wray initiate the investigation, he would have done so. They are both nominated by the president and confirmed by the Senate. If Garland were not happy with Wray, he could have made that clear.  

But Garland went along with the plan, taking a back seat. As the Post reports, “The [go up the ladder only] strategy was embraced by Garland, Monaco, and Wray. They remained committed to it even as evidence emerged of an organized, weeks-long effort by Trump and his advisers before January 6 to pressure state leaders, Justice officials, and Vice President Mike Pence to block the certification of Biden’s victory.”  

Indeed, as the Post notes, and certainly as Garland was aware, supporters of the former president bragged that they had submitted the names of fake electors on his behalf. Yet the DOJ “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.” A year earlier, on his first day, Garland promised to the approximately 115,000 Department employees via video meeting that “Together, we will show the American people by word and deed that the Department of Justice pursues equal justice and adheres to the rule of law.” Yet, when it came to those employees speaking to him, he didn’t always listen. 

Current and former DOJ officials urged him not to delay. When House Speaker Nancy Pelosi announced the creation of a select committee to investigate the January 6 attack, many of us wrongly assumed the DOJ was investigating Trump on a parallel course, even without the appointment of a special counsel. Plenty of evidence merited a special counsel’s probe into Trump that could get underway even as individual insurrectionists were identified, arrested, and prosecuted. As Justice Louis Brandeis wrote in Other People’s Money, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” And with Garland taking his sweet time illuminating the festering sore, is it any wonder it continued to grow? Not holding Trump accountable emboldens him further. After Garland let the clock run out on statutes of limitation for the obstruction set out in the Mueller Report and the hush money payments for which Michael Cohen went to prison and blocked the investigation into Trump’s role in the fake electors and insurrection, is it any wonder that Trump decided to hold onto those highly classified documents? 

Garland may end up causing the Justice Department to become what he feared most, a discredited political actor. By the time he appointed Special Counsel Jack Smith in November, 2022—something he should have done after his March 2021 swearing-in—the die was cast. Trump had already launched his bid for the presidency in 2024. Given this late date, any related indictment will come well into Trump’s campaign for the Republican nomination and any trial, quite possibly, after his second inaugural in 2025 when the 47th president won’t dawdle and will end the federal case against himself.  

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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.