The Justice Department is moving against Donald Trump

AS BARACK OBAMA’S last nominee to the Supreme Court bench—cruelly blocked by Republican senators—Merrick Garland was a darling of the left. As Joe Biden’s attorney-general, he has been more of a disappointment. Cautious, inscrutable and deeply concerned to remove the Department of Justice (DoJ) from politics, Mr Garland is considered by many Democrats to be ducking the single great challenge of his tenure: holding Donald Trump to account for his effort to steal the 2020 election.

Over the course of eight public hearings Congress’s bipartisan January 6th committee has produced reams of evidence against the former president. But Mr Garland’s simultaneous criminal investigation has been more of a cloak-and-dagger affair. Publicly, the Justice Department has devoted most of its January 6th efforts to investigating and prosecuting nearly 900 small-fry participants in the Capitol riot. Even the fact that it is investigating Mr Trump and other instigators of the violence has not been formally acknowledged by Mr Garland. Whenever quizzed on the matter, as he was on NBC this week, the attorney-general deadpans that his department will follow the evidence wherever it leads.

Many are unimpressed. “It is unprecedented for Congress to be so far out ahead of the Justice Department in a complex investigation,” said Adam Schiff, a member of the January 6th committee. Mr Biden is said to share his concern. According to the New York Times, the president has said privately that Mr Garland should “act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of January 6th”. The concern extends beyond partisan Democrats. “Merrick Garland has a serious problem on his hands,” Benjamin Wittes, a non-partisan legal commentator, opined on Lawfare, a respected blog. “Much of the country has lost patience with the Justice Department’s January 6th investigation.”

A report by the Washington Post on July 26th that the Justice Department is now homing in on the former president has therefore caused a stir. According to the Post, DoJ prosecutors questioning witnesses before a grand jury have “in recent days” started asking questions about conversations with Mr Trump, his lawyers and “others in his inner circle who sought to substitute Trump allies for certified electors from some states Joe Biden won”. This refers to an effort, led in part by Rudy Giuliani, then Mr Trump’s personal lawyer, to get Trump loyalists appointed as electors in order to have them misreport the vote in states that he lost. Even some of the former president’s lawyers are said to have referred to these would-be stooges as “fake” electors. The scheme was one of seven ways in which the January 6th committee alleges Mr Trump tried to steal the election.

What has the Post revealed about Mr Garland’s designs on Mr Trump? In part, that the criticism of the attorney-general is overdone. Criminal investigations are always built from the ground up, so it is only natural that Mr Garland should have concentrated on the foot-soldiers of Mr Trump’s attempted election heist first. The volume of prosecutions that that effort has entailed—perhaps amounting to the biggest investigation in the Justice Department’s history—ensured this would take time. Yet the Post’s revelations are in fact only the latest to suggest that Mr Garland, in textbook fashion, is now closing in on Mr Trump and his senior lieutenants.

Other pointers include the department’s seizure last month of the phone of John Eastman, the architect of Mr Trump’s scheme to prevent Congress certifying Mr Biden’s win. It has also organised a raid on the home of Jeffrey Clark, a former DoJ lawyer and proponent of Mr Trump’s attempted heist. Meanwhile the department has issued subpoenas and at least one search warrant to multiple participants in the fake-elector plot, in Nevada, Arizona and elsewhere. These events point to a two-pronged investigative strategy consistent with some of the allegations the January 6th committee has levelled at Mr Trump.

DoJ investigators under Thomas Windom, a federal prosecutor, are reported to be looking into the “fake elector” scheme, and the department’s inspector-general is meanwhile leading an investigation of Mr Eastman and Mr Clark. According to the New York Times the search warrant issued to Mr Clark “indicated that prosecutors are investigating [him] for charges that include conspiracy to obstruct the certification of the presidential election”. That sounds a lot like one of the crimes a federal judge in California, when called to rule on Mr Eastman’s attempts to deny evidence to the congressional committee, said that Mr Trump appeared to be guilty of.

None of this means that Mr Garland is going to indict Mr Trump, or even that he is likely to do so. No former president has ever been charged with a crime. The fact that few Republicans have been persuaded by the congressional committee’s evidence suggests how politically fraught an indictment against Mr Trump would be. And although, as Mr Garland’s critics argue, choosing not to indict Mr Trump would also be a political act if there is sufficient evidence to support a conviction, the attorney-general might well consider that a lesser risk.

But that is informed speculation at best. The truth is that no one, probably including Mr Garland, knows whether Mr Trump will be charged over his attempted election theft. Yet there is no doubt that the case against him has hardened. Or that the Justice Department is on it.■

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