“Waiting for Garland” from Untouchable: How Powerful People Get Away with It

Starting in early 2022, around the one-year anniversary of the January 6 attack, a public dispute began to boil over: Was Garland even investigating Trump at all?


Oh yes, he’s on it, claimed the Garland faithful. He’s a stealthy prosecutorial ninja, they proclaimed, and—despite the passage of time since the January 6 attack and the conspicuous absence of overt indicators of a Trump-focused investigation—he’s coming after the boss. Besides, they’d argue, This is complicated and these things take time and he’s being super-careful. Garland’s gonna nail Trump, just you wait.


I fell in the other camp, as you might have surmised. The pro-Garland crowd claimed that every sign of life from the DOJ was proof positive that Garland was a man on a mission. But this strawman construction wrongly presupposed that the skeptics believed Garland was doing nothing at all. Plainly, Garland invested massive resources in DOJ’s January 6 investigation, and the department brought hundreds of prosecutions. And in the summer of 2022—after the January 6 Committee obtained public testimony from former White House insiders who exposed Trump’s malfeasance, many of whom had not yet spoken to federal prosecutors—the Justice Department stepped up its investigation and subpoenaed key players from inside the Trump administration, including former White House counsel Pat Cipollone, former White House aide Cassidy Hutchinson, and Marc Short and Greg Jacob, both former advisors to Vice President Mike Pence.


No doubt DOJ leadership could declare plausibly and technically correctly that everybody was in play, at all levels, including Trump himself. Garland and his top brass reminded the public at every opportunity that they would follow the evidence wherever it took them, no matter how high. And, eventually Garland did set his sights on the White House, and Trump’s inner circle.


The problem, however, was that Garland took far too long to focus squarely on Trump—and even then, he behaved more like a tepid bureaucrat than a determined prosecutor. The New York Times reported in July 2022 that—consistent with the period of conspicuous public inaction from DOJ that stretched through 2021 and into 2022—Garland “never seriously considered focusing on Mr. Trump from the outset.” As a result, the Justice Department “had not even opened a case targeting fake electors by early fall 2021, months after details of the wide-ranging scheme were known publicly.”


Why, we can fairly ask, would the attorney general decline to focus from the start on the person who sat atop the hierarchy of power behind the coup attempt? Instead, Garland structured his investigation in an impossibly bureaucratic and paralyzingly myopic manner that was essentially predestined to never reach Trump or the true power players at all. Garland could have gone right for the jugular; instead, he poked at each individual capillary.


Garland first tipped his hand about this approach during a subtly telling exchange at his confirmation hearing in February 2021. Senator Sheldon Whitehouse asked whether Garland was “willing to look upstream from the actual occupants who assaulted the building, in the same way that in a drug case you would look upstream from the street dealers to try to find the kingpins, and that you will not rule out investigation of funders, organizers, ringleaders, or aiders and abettors who were not present in the Capitol on January 6th.” Garland responded, “We begin with the people on the ground and we work our way up to those who were involved and further involved and we will pursue these leads wherever they take us.”


On the surface, this sounds like an unremarkable response. Every prosecutor routinely intones that the job is to follow the facts and the law and pursue any leads wherever they may go, typically working from lower-ranking players up the hierarchical chain. But that approach, as applied to the coup attempt—particularly Garland’s suggestion that the only way to reach the true power sources was to “begin with the people on the ground”—was virtually guaranteed to fail.


It takes hard work and good luck for any prosecutor to climb from the bottom all the way to the top of any hierarchical pyramid. Savvy bosses like Trump understand the advantages of holding power, and they can exploit their positioning atop the organizational pyramid to their advantage. So as a prosecutor, you typically need to flip not just one cooperating witness but several, each one taking you a step higher on the organizational flowchart. The more layers you need to climb, the lower your chances of ultimate success. As we saw earlier, in a typical narcotics case, you might flip a few dealers and move up the ranks a couple rungs to the serious traffickers, but you’d still fall well short of El Chapo or other top magnates. Similarly, in some of my mob cases we got lucky, flipped a few guys, and rounded up some mid-­or even upper-level players. But we often still fell short of the boss.


Now apply that to the model of January 6. Let’s take the Oath Keepers indictment, which was widely hailed upon its announcement as the Justice Department’s most serious charge against the biggest players, the “Mission Accomplished” moment for the Garland believers. Let’s say some of those defendants had flipped—­perhaps even the top person charged, Oath Keepers leader Elmer Stewart Rhodes. (Indeed, some of the charged Oath Keepers reportedly did cooperate with federal prosecutors.) Now: Would Rhodes or any other Oath Keeper realistically have had information that prosecutors could have used against Trump? Or even information that could have led to somebody else who, in turn, might have flipped and gotten to Trump? How many layers stood between the ground troops who actually stormed the Capitol and Trump himself?


It’s not at all clear that there was any chain of command from the Oath Keepers or other on-­the-­ground forces, up through intermediaries, and eventually to Trump himself. Remember that Trump has shown over the years that he’s smart enough to limit his contacts, particularly with the rabble who carry out his wishes and instructions. Trump would no sooner meet directly with an Oath Keeper than a Mafia boss (like Artie Nigro, in the aforementioned murder of Al Bruno) would meet with a low-level hired gun (like Frankie Roche, who actually shot Bruno). Yet, as Trump also has demonstrated, he knows how to mobilize his supporters to criminal action without quite saying so explicitly.


Not every criminal conspiracy has neat ranks and job titles that can be expressed in one pyramid-shaped diagram, like the mob with its associates-soldiers-capos-consiglieri-underboss-boss structure. With respect to the coup attempt and January 6 attack, for example, prosecutors seemingly were dealing with not one unified criminal enterprise but rather several overlapping conspiracies. Trump and his close advisors tried to steal the election by spreading a lie and through fraud: pressuring local election officials to throw some extra votes Trump’s way, trying to install a loyalist as acting attorney general and enlisting DOJ to falsely validate claims of election fraud, pressing state legislators to override the will of the voters, drafting up slates of fake Trump electors for states that had voted for Biden, and intimidating the vice president to illegally throw out electoral votes. Meanwhile, members of numerous separate but overlapping conspiracies (inspired by Trump’s overheated public rhetoric about a stolen election, but seemingly not formally or legally connected to one another or to Trump) stormed the Capitol and wreaked havoc. Even among the foot soldiers, we saw not one singular conspiracy but many—­the Oath Keepers, the Proud Boys, plus other groups (some with formal names, others without) and individuals at ground level on January 6. They blitzed the Capitol because of Trump’s lies, but not necessarily in a legally cognizable criminal conspiracy with one another, or with Trump. The Capitol attack was not a single, unified conspiracy; it was a mass of different conspiracies—some small, some large, some simplistic and others sophisticated—motivated by and acting toward the same broad goal.


So, using Garland’s investigative model, even if the Justice Department had reached the top of some pyramid—­say, the top of the Oath Keepers, or even a step or two beyond—­federal prosecutors likely still would not have gotten to Trump. The way Garland structured his investigation and set the bar for himself, DOJ would have needed to get extraordinarily lucky, many times over, to even approach the real bosses. And even if prosecutors had flipped all the people they charged, it’s still far from certain there would have been an available pathway to implicate Trump or his top advisors at all. It’s worth asking whether Garland took this ultimately futile approach because he genuinely believed it was the optimal and most efficient way to build a case against the real power sources, or because he knew on some level that such a strategy was unlikely ever to result in a prosecution of Trump, with all its attendant political risks and complications. In the end, Garland’s chosen strategy enabled him to invoke the rote mantra of “facts and law, facts and law”—I simply followed the facts and the law, and here’s as far as it got me—while never having to meaningfully grapple with a potentially explosive, uniquely difficult prosecution of the most powerful and combative target on the planet, Donald Trump. (I repeatedly requested through the Justice Department an interview with Garland or any of his top advisors for this book, and was denied or ignored.)


Elie Honig

Elie Honig is a CNN Senior Legal Analyst who previously worked for 14 years as a federal and state prosecutor. He provides on-air commentary and analysis for CNN on news relating to the U.S. Department of Justice, major criminal trials, the Supreme Court, Congressional and grand jury investigations, national security, policing, and other legal issues.

In 2022, Honig was nominated for an Emmy Award in the category “Outstanding News Analysis: Editorial and Opinion.” His first book, “Hatchet Man,” was a national bestseller, and his second book, “Untouchable: How Powerful People Get Away With It,” publishes with HarperCollins in January 2023. Honig also hosts podcasts and writes for Café and Vox Media, teaches at Rutgers University, and is Special Counsel at a New Jersey law firm. He is a graduate of Rutgers College (1997) and Harvard Law School (2000).

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