Where might the Justice Department be focusing its attention now that the Jan. 6 committee has finished its first season of hearings and in the wake of new reporting that DOJ is focusing on Donald Trump, himself?
One problem for the Justice Department is that it has to try to be everywhere at once. It must focus on the enormous number of people in the mob that overran the Capitol — where prosecutors put most of their resources during Attorney General Merrick Garland’s first year in office. As the Jan. 6 hearings have made clear, DOJ must also simultaneously pursue the pressure campaign used to try to persuade Vice President Mike Pence to avoid certifying the election and the fake electors scheme and the militia members indicted for seditious conspiracy, as well as the occasional witnesses who ignored congressional subpoenas. All of these investigations are important. But there is one thread Garland and team should prioritize: bad lawyers.
These inept and unscrupulous advisers may help lead investigators to those most culpable for the big lie and the Jan. 6 insurrection.
First off, these lawyers need to be held accountable for any criminal behavior. But beyond that, these inept and unscrupulous advisers may help lead investigators to those most culpable for the big lie and Jan. 6 insurrection.
The House committee exposed the lawyers’ misconduct to the public. But it is increasingly clear that the Justice Department was already focused on these bad actors, who were operating in close proximity to and in direct contact with Trump. The Justice Department is reportedly pursuing whether Kraken lawyer Sidney Powell, for example, was involved in funding the insurrection and has seized Trump lawyer Rudy Giuliani’s phones and computers.
Jeffrey Clark and John Eastman round out Trump’s cadre of questionable counselors. These four in particular seem to have been especially involved with the legal plotting used in various aspects of perpetuating the big lie and preventing the certification of the election.
Clark, the former acting head of the Justice Department’s Civil Division, wanted to run Trump’s Justice Department so badly he was willing to advance Trump’s plan to remain in power despite losing the election to get the promotion to attorney general. He has been floated as a possible attorney general nominee should the former president win again in 2024.
Fortunately, federal investigators are already interested in Clark — at the end of June, in what appears to be an investigation run by the Justice Department’s inspector general, they showed up at his home. Clark is also in trouble with the D.C. Bar, which is investigating him for “conduct involving dishonesty” and attempting “to engage in conduct that would seriously interfere with the administration of justice.” The ethics charges the bar is pursuing run almost parallel to federal charges the Justice Department could bring if the evidence substantiates them.
Clark is in infamous company. Eastman’s behavior has been mentioned frequently throughout these Jan. 6 hearings and earned rebuke from his longtime mentor, former federal appellate Judge Michael Luttig, a conservative icon. Eastman, a former law professor, was willing to push a fake elector scheme despite acknowledging to people in a meeting where Trump was present that the ruse might not be legal. Powell pursued the Kraken litigation without ever posting a substantive win in any courtroom, even the ones where Trump-appointed judges made the rulings. Defending herself in a subsequent defamation case, Powell argued “no reasonable person” thought her statements about the 2020 election results were factual. And at every step of the way, including during the riot itself, Giuliani was a tireless cheerleader and enabler for Trump.
In a complicated and grave situation like this one, the notion that the Justice Department should “work from the bottom up” — bringing indictments, flipping defendants and using cooperator testimony to work up the chain — doesn’t make as much sense as it does in a basic drug conspiracy or bank robbery case.
The problem here is that there are multiple conspiracies. While there is overlap of participants and objectives, there isn’t a single defined conspiracy with one set of participants. So starting in the middle, so to speak, makes sense. Working up the chain from the members of the Capitol mob won’t lead in a straight line to the people who ran the effort to interfere with the election. But following the lawyers likely will.
Investigating possible conspiracies involving the bad lawyers, as well as the activities of Roger Stone, Michael Flynn, Steve Bannon and others in the Willard Hotel “war rooms,” would position the Justice Department to develop cooperators and sources of information that can clarify, for once and for all, who in the White House bears criminal responsibility for the events on Jan. 6.
The Jan. 6 committee has said from the beginning that the threat posed by Trump is ongoing. That’s true this year, as we head into the midterm elections, and it will be even more true in 2024 if Trump isn’t held accountable. The Jan. 6 committee has said from the beginning that the threat posed by Trump is ongoing. When he addressed the country after the insurrection, Trump declined to acknowledge that he lost the election. Twenty months later, he still refuses to let go of his 2020 loss. Rep. Mo Brooks, R-Ala., said Trump was still pushing him to find a way to rescind the election on multiple occasions after September 2021. This month, the speaker of Wisconsin’s House said he got a call from Trump urging him to overturn the 2020 election. Meanwhile Trump is an all-but-announced candidate in the next presidential contest. That should be an important part of the calculus as the federal powers that be weigh whether to pursue a first-ever prosecution of a former president. Trump is not going to leave the political arena voluntarily like Richard Nixon did. The country cannot afford to let his failed coup attempt become a practice run for a successful one. It is a heavy responsibility for Garland and the Justice Department to bear. But the attorney general has repeatedly expressed his commitment to following the facts, reiterating this commitment in an interview with NBC News’ Lester Holt that aired Tuesday. And the House committee has certainly laid those facts out for him. Article II of the Constitution defines the president’s responsibilities. Section 3 says the president “shall take Care that the laws be faithfully executed.” It is not optional, the take care clause. When you run for office, when you take the oath, you commit to this fundamental duty established by the Founding Fathers. Trump failed to do that. He failed spectacularly. And his dereliction of duty makes him unfit to serve, while the evidence suggests he may well be fit for prosecution. Rep. Liz Cheney, R-Wyo., said during last week’s hearing that the dam is breaking. Prosecutors recognize that moment in a long-term investigation. It’s when the bad guys realize they have lost and begin to try to cut their losses. Which means now is the perfect time for DOJ to focus its attention on Trump’s bad lawyers. Lean on this rogues’ gallery of legal lightweights and turn them into cooperators. Garland can make sure they are never allowed inside a courtroom again. And he can continue building toward the ultimate goal: holding the people who are most responsible for Jan. 6 to account.
