After the Supreme Court delayed consideration of Donald Trump’s immunity claim until April, some liberals directed considerable outrage not just at the court, but also at a member of President Joe Biden’s Cabinet. Such attacks act as if the delay were Attorney General Merrick Garland’s fault instead of justices like Clarence Thomas. These criticisms are misplaced. The Justice Department, before and after Garland’s delayed confirmation, started investigating key figures in the election interference case against Trump in 2021. And accusations of delay ignore the real-world obstacles that special counsel Jack Smith, his team and their predecessors had to navigate carefully — lest the whole case fall apart in court.
The department took overt investigative steps against three of the six alleged co-conspirators identified in Trump’s Jan. 6 indictment in 2021, long before Garland appointed Smith to the case. Days after a New York Times report on Jeffrey Clark’s role in Jan. 6, on Jan. 25, 2021, Justice Department Inspector General Michael Horowitz announced an investigation into “whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The IG investigators remained involved when FBI agents seized Clark’s phone June 23, 2022. The department had already, a month earlier, obtained a warrant for one of Clark’s private email accounts and would obtain a second one the following day. The August 2023 indictment of Trump describes Clark as co-conspirator 4.
Those often-ignored early moves against Trump’s co-conspirators go unmentioned in reports that claim Garland delayed the investigation.
In April 2021 — on Deputy Attorney General Lisa Monaco’s first day on the job — the Justice Department obtained a warrant to seize Rudy Giuliani’s phones. That wasn’t a warrant for Jan. 6; it sought evidence that Trump’s lawyer was doing the bidding of Ukrainians when he convinced Trump to fire Marie Yovanovitch in 2019. But the DOJ used the special master review that Giuliani demanded to look at all the communications seized, not just those relating to Ukraine. In September 2021, the judge in that case granted prosecutors’ request to do the privilege review of materials seized from Giuliani’s devices on all files that post-dated Jan. 1, 2018, irrespective of subject. (The special master even prioritized the devices that were used through 2021.)
Giuliani himself has described those materials as including all his Jan. 6-related communications. A privilege log he released last year shows pages and pages of communications turned over to the FBI — and available to anyone who had obtained a probable cause warrant for Jan. 6 — by Jan. 19, 2022. There are more than 40 mentions of Giuliani’s actions as co-conspirator 1 in Trump’s indictment, as well as a reference to a document known to have been available on the devices seized in April 2021.
And in September 2021, prosecutor Molly Gaston — one of two lead prosecutors on the Jan. 6 case against Trump — subpoenaed associates of Sidney Powell as part of an investigation into her fundraising off false claims of voter fraud. Just one paragraph in the Trump indictment describes Powell’s actions, as co-conspirator 3, in the conspiracies charged against the former president. But that paragraph focuses on a topic related to the subpoenas sent out in 2021: Powell’s relentless attacks on Dominion Systems in lawsuits.
Those often ignored early moves against Trump’s co-conspirators — and other investigative developments, such as the purported cooperation of Jan. 6 defendant Brandon Straka, investigative steps implicating Roger Stone, and the prosecution of Alex Jones’ sidekick — go unmentioned in reports that claim Garland delayed the investigation. For good reason: Most happened where reporters and pundits weren’t looking.
But the popular narratives attributing delay to Garland also ignore several factors that did take time.
Consider the impact Covid had on all prosecutions, nationwide, in 2021. A year of pandemic measures created a backlog that delayed not just trials, but also court hearings and grand jury investigations. It took 14 months to bring the first Jan. 6 defendant to trial, even though that defendant was identified to the FBI before the attack. The conspiracy indictment of the several rioters who first broke into the Senate chamber — whose GoPro video prosecutors may use to show Trump’s direct influence on rioters at his trial — had to be delayed from April to September 2021 because of Covid challenges.
Investigating Trump was like investigating a very corrupt law firm.
Plus, investigating Trump was like investigating a very corrupt law firm. According to a filing from Jack Smith, “at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign.” Some of these witnesses are obvious — and central to the plot to steal the election: Giuliani, John Eastman and Kenneth Chesebro were all described as co-conspirators. Several lawyers worked for Giuliani — people such as Christina Bobb and Jenna Ellis. Others worked for the campaign, or participated in state-level conspiracies or lawsuits.
Regardless of the witnesses’ level of involvement, the Justice Department had no choice: Such privileges must be protected or prosecutors risk blowing the entire case. This process could add much as a year to the investigation of any lawyer’s communications.
Even for witnesses who weren’t lawyers, Trump’s executive privilege claims created delays. For example, the Justice Department’s fight to secure former Vice President Mike Pence’s testimony started no later than July 2022, well before Smith’s appointment, with Pence’s top aides. It continued at least until April 2023, when Pence testified. Even seemingly obvious actions Trump took, such as the tweet he sent targeting Pence while rioters were storming the Capitol, required working through such privilege challenges to prove that Trump, and not someone else, sent the tweet. Finally, Trump’s co-conspirators plotted their attack on encrypted apps. At a minimum, Trump’s associates planned their activities on Signal, Telegram, WhatsApp, HushMail, and ProtonMail. Barring fully cooperative witnesses, such communications require investigators to seize phones, often one after another, to reconstruct communications. The delays created by Covid, use of encryption, attorney-client and executive privilege claims were unavoidable, even for the most obvious evidence. Take the tweet Trump sent at 2:24 p.m. Jan. 6: “Mike Pence didn’t have the courage.” It was right there in public! But to present that in court first required the exploitation of at least two phones, nine months of fights over executive privilege, a 23-day stall from Twitter and two sets of interviews with at least eight different top aides. One delay that was unnecessary was caused by some of the people who most loudly blamed Garland: the Jan. 6 Committee. DOJ first asked the committee for witness transcripts in April 2022. That June, prosecutors in the trial of leaders of the Proud Boys agreed to reschedule their trial from August until December because the committee would not release transcripts until September. The prosecutors were vindicated when those transcripts finally came out in December, after three additional months of delay and jury selection had already started. Twice during the trial, prosecutors learned that witnesses had told the committee something they hadn’t told the FBI; in one instance, a committee transcript revealed an attorney conflict that threatened prosecutors’ reliance on testimony from their most important cooperating witness. Given that court filings suggest Smith will treat the Proud Boys akin to co-conspirators when this case finally goes to trial, those are the kinds of unnecessary screw-ups that could jeopardize Trump’s trial itself. Garland’s record as attorney general is far from flawless: Robert Hur was a poor choice to be special counsel in the Biden documents investigation. But criticizing him for the timeline of the Trump election interference case is unwarranted. Naysayers will complain that we all saw it happen in public, and they’re right. But behind every one of those public acts lies a chain of evidence without which Trump would win the case, the hunt for which started well before Smith came along.
Marcy Wheeler
Marcy Wheeler writes about legal cases, civil liberties, and national security at http://emptywheel.net. 
