LAW AND
ORDER
Opinion | What the DOJ Isn’t Telling Us About
Jan. 6
Merrick Garland can and should be more forthcoming
about investigating the insurrection.
Opinion by
ANKUSH KHARDORI
07/06/2021
12:00 PM EDT
Ankush
Khardori is an attorney, writer and former federal prosecutor.
Today marks
six months since the Jan. 6 Capitol riot, and the effort to find, investigate
and prosecute the people responsible is moving forward on many fronts—including
just last week, with the House voting along party lines to create a select
committee to pursue the “many questions” about what precipitated the
insurrection and the law enforcement response.
But it’s the
Department of Justice where the most important moves are taking place. Attorney
General Merrick Garland recently announced that the Justice Department has
arrested more than 500 people; the first defendant was sentenced; and the
department has begun arresting people who attacked journalists that day. The
DOJ will continue to be central going forward: Congress can investigate the
events of that day at a high level, but it will be federal prosecutors who
continue to pursue people who engaged in criminal misconduct and take them to
court to ensure some legal accountability for their actions.
But for all
the announcements, committees and sense of momentum, there’s a troubling lack
of transparency about the department’s actual strategies and investigations. We
still don’t know how the DOJ is approaching a host of important questions
concerning this momentous and unprecedented event in the nation’s history. The
handling of the DOJ’s investigation will have far-reaching consequences for the
stability of our country. And right now, the public’s understanding of the
DOJ’s work is based largely on what the department releases through public
indictments—which most people will never read—and what a handful of news
outlets distill from them.
There are
major outstanding questions, as well as areas in which the public record has
not been as fulsome as it should be. They include whether the department is
undertaking any review of the conduct of White House officials, including
former President Donald Trump himself, or whether it will simply wait to see if
the current investigations end up leading there—a potentially yearslong, risky
and unnecessary slog that ignores the fact that there is already reason enough
to conduct an investigation.
Similarly,
the public deserves to know whether and to what extent the department is
investigating Republican political officials’ potential connections to the
attack, which, notwithstanding the understandable sensitivities about how such
an investigation would need to be handled, is something the public needs to
know, irrespective of the outcome. This does not need to be a reckless and
politically volatile disclosure akin to those that former FBI Director James
Comey made about Hillary Clinton; a simple acknowledgement, without any
suggestion that any conclusions have been reached, would suffice. Indeed,
clearing Republican lawmakers would be just as valuable as inculpating any of
them.
In a
situation as unique as this, in which political partisans are doing everything
they can to distort what happened, transparency is itself a substantive good
that will be crucial to building Americans’ trust in the outcomes, at the
various levels of policy, reform and prosecution.
Garland
spends a good amount of time talking about how crucial it is for the department
to promote the rule of law, but the country cannot simply take his word for
this.
As others
have persuasively explained, the FBI has not been forthcoming enough about the
bureau’s preparation for Jan. 6. There appears to have been sufficient
information available to the bureau to do much more than it did to prepare, but
when Director Christopher Wray has testified before Congress, he has failed to
answer pressing questions in this area. Wray’s evasiveness is all the more
frustrating and difficult to understand because Garland was asked during his
confirmation process about the FBI’s repeated failure to respond to inquiries
from Congress during the Trump administration, and he promised that the
department would do better under his watch.
Other
questions the DOJ should answer include what its current investigative and
prosecutorial strategy is and what sorts of insights the department has already
gleaned, as a practical matter, about the nature of the threat of right-wing
extremism. At a recent meeting with reporters, Garland declined to say whether
the department is considering charges related to sedition, but he and other
senior officials are reportedly reluctant to pursue this theory. There are
serious arguments in favor of that posture—legal (the rarity of the charge
makes it risky), practical (it may not increase anyone’s criminal exposure
given the array of other available charges) and political (it could polarize
the investigation in the public’s mind)—but these are things that the
department can and should be forthright about.
You often
hear that prosecutors are not supposed to disclose “non-public, sensitive
information” to the public, and both department regulations and the rules in
D.C.’s federal district court prohibit the release of information if it might
prejudice an ongoing proceeding. But these rules leave substantial leeway for
the department to provide high-level disclosures to the public that are not
tied to any particular case or group of cases. In fact, the department’s policy
recognizes that there may be reason to deviate from the typical nondisclosure
rule when “the community needs to be reassured that the appropriate law enforcement
agency is investigating a matter, or where release of information is necessary
to protect the public safety.”
There’s
also the dirty little secret that the department is less rigid about the
nondisclosure posture than it often suggests in public. Prosecutors sometimes
use “speaking indictments” to disclose information to the public that is not
necessary to include in a charging document. Prosecutors and senior officials
sometimes provide background briefings to reporters when they believe it is in
the public’s interest to disseminate information that will not adversely affect
a particular case—something I myself did as a line prosecutor with the blessing
of senior officials and the department’s Office of Public Affairs. I knew
colleagues and senior officials who did the same, even when the public value of
these disclosures was questionable. This is to say nothing of possible leaks to
reporters about sensitive ongoing matters that may or may not be officially
sanctioned.
Indeed,
there is plenty of evidence from Garland’s own tenure already that the
department will communicate with the media and the public on matters of
significant public concern when it wants to. Consider Garland’s recent meeting
with the leaders of major news organizations after the disclosures about
subpoenas under the Trump administration to obtain material tied to reporters.
As a
practical matter, being more forthcoming might stave off some of the concerns
on the Hill and among some observers that Garland may not be the right person
to serve as attorney general at this precarious moment. But there is another,
far more important reason, which is that the rule of law is not the only
important value or objective in a well-functioning democracy. Transparency
about how the government handles such a complex, politically serious criminal
episode can bolster public confidence both that there will be robust and
appropriate forms of accountability for such misconduct and that law
enforcement has the capacity to prevent future attacks.
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