As the Jan. 6 committee continues to build its case for Donald Trump’s criminal culpability regarding the Capitol insurrection, the Justice Department has come under increasing criticism for its failure to take public action against the former president. Rep. Adam Schiff, who sits on the Jan. 6 committee, commented on MSNBC that “it is unprecedented for Congress to be so far out ahead of the Justice Department in a complex investigation.” According to the New York Times, President Biden has said privately that he wishes Attorney General Merrick Garland would “act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.” Following the most recent congressional hearing on Jan. 6, Andrew Weissmann, formerly a prosecutor working under Special Counsel Robert Mueller, warned that the Justice Department seems to be taking “the wrong approach to investigating the Jan. 6 insurrection” by zeroing in with a “myopic” focus on the specifics of the riot itself, rather than the broader scope of efforts to overturn the election.
In light of this criticism, Benjamin Wittes has written a defense in Lawfare of the department’s work investigating the insurrection. He invites us to take a few deep breaths and drink a cup of warm tea. Our breathing is fine, and we’ve had enough tea. It’s reasonable at this point for the public to be frustrated by, and for journalists and commentators to start pushing on, the Justice Department’s continuing silence and apparent lack of urgency regarding Trump’s personal criminal culpability. We’re not arguing for any specific investigative or prosecutorial steps, the utility of which would be hard to gauge in the absence of more information about where the criminal probe stands. We are, though, concerned that the department may be conceptualizing its own responsibilities—to both the public and the rule of law—too narrowly in the midst of a genuinely unprecedented historical moment. [Continue reading…]