In the nearly 13 months since the Jan. 6 Capitol riot, hundreds of Americans — the foot soldiers of the insurrection — have been criminally indicted. However, not a single member of the insurrection’s suspected command structure, the planners and plotters, the organizers and funders, the orchestrators and inciters, has been charged. And it’s still unclear whether any ever will be. This inaction from our very own Department of Justice could enable future attacks on our democracy.
Donald Trump is famous for, and adept at, taking a loss and spinning it as a win.
Donald Trump is famous for, and adept at, taking a loss and spinning it as a win. When phone logs heavily suggested he had extorted Ukrainian President Volodymyr Zelenskyy, he told Americans his conversation with Zelenskyy was “perfect.” When he was impeached after that perfect call, he claimed he was the victim of a politically motivated “witch hunt.” When Robert Mueller’s report was released, he crowed about his “complete and total exoneration.”
Trump said his recorded phone call urging Georgia Secretary of State Brad Raffensperger to “find” enough votes to (fraudulently) declare him the winner of the election in Georgia may have been “even more perfect” than his call with Zelenskyy.
On Saturday, Trump continued to hint that he may run again in 2024, saying at a Texas rally that if he wins, he would consider pardons for convicted Jan. 6 rioters. And given Trump’s obvious patterns and proclivities, there is little doubt how a Trump campaign would spin things in the event the Justice Department declines to indict him.
To be clear, the Justice Department is criminally investigating the insurrection, having indicted more than 700 people. Most recently, the Justice Department upped the criminal ante by indicting 11 alleged members of the Oath Keepers organization on seditious conspiracy charges. On Jan. 5, Attorney General Merrick Garland addressed the nation, saying the Justice Department would hold perpetrators accountable “at any level … whether they were present that day or were otherwise criminally responsible for the assault on democracy.” Notably, he also referred to Watergate in what seemed to be a not-so-subtle reminder that high-level government officials were held accountable for the series of crimes that unfolded in the aftermath of the break-in at the Watergate Hotel.
But while Garland’s lofty words and vague promises provide some atmospheric reassurances, we have yet to see any accountability at that top level.
I hasten to add that criminal investigations are supposed to be conducted in secret, shielded from public view unless and until indictments are issued. But the reality is once federal prosecutors dig into a criminal investigation in earnest, particularly when they begin issuing grand jury subpoenas, it is nearly impossible to keep the investigation from seeping into the public square.
This merits a short discussion of why not all subpoenas are created equal. We have seen much reporting recently about all kinds of subpoenas: congressional subpoenas like those being issued by the House’s Jan. 6 committee; civil subpoenas issued for Donald Trump, Donald Trump Jr. and Ivanka Trump by New York Attorney General Letitia James as part of her civil fraud investigation; the possibility of subpoenas’ being issued by a Georgia special grand jury investigating Trump’s possible violations of Georgia state election laws; etc.
Unfortunately, and alarmingly, we have seen some Trump loyalists disregard, defy and even mock congressional subpoenas. Former Trump lawyer Jenna Ellis, upon being subpoenaed by the House select committee, actually tweeted, “The committee is just mad they can’t date me.” Worse than the juvenile response of Ellis, other Trump associates, like Steve Bannon and Mark Meadows, have simply refused to appear, resulting in Bannon’s and Meadows’ being referred by Congress to the Justice Department for criminal prosecution for contempt of Congress.
It has become painfully obvious that congressional subpoenas are largely toothless. (Although arguably Congress extracted its own teeth by refusing to use its lawful power of inherent contempt, as I wrote about in an earlier piece.)
Civil subpoenas present their own challenges on the accountability front, not to mention opportunities for nefarious litigants to delay the enforcement process. For example, New York’s attorney general and the Trumps are battling in court over the legitimacy and enforceability of those subpoenas. These court cases can drag on for months or more, making timely accountability a significant challenge.
And how about the subpoena power being sought by the district attorney in Fulton County, Georgia? Fani Willis had to ask a co-equal branch of the Georgia government, the judiciary, for permission to impanel a special grand jury just so she would have the ability to subpoena witnesses who refuse to cooperate voluntarily. Brad Raffensperger apparently is one of them. The mother of all subpoenas is the federal grand jury subpoena. As a former career federal prosecutor, I issued more subpoenas than I can count. Witnesses generally don’t ignore, defy or mock federal grand jury subpoenas, because ignoring them can result in bench warrants and arrest by the U.S. Marshals. If a witness asserts a privilege, we head straight to the chief judge’s courtroom to litigate the privilege in real time and resolve the matter. Compare that timeline (days, or occasionally weeks) to former White House counsel Don McGahn’s congressional subpoena battle, which took over two years. But the reality of the federal criminal justice system is that, once witnesses are subpoenaed for the grand jury, the investigation is very likely to become public, because of media investigations, lawyers or the witnesses themselves. (Grand jury secrecy rules prohibit prosecutors from publicly disclosing grand jury matters, but the witnesses aren’t subject to any such prohibition.) And, of course, there can also be (inappropriate) leaks from FBI agents, federal prosecutors or Justice Department staff members. All of which is to say the lack of even whispers of a federal criminal investigation into Trump or other high-ranking government officials or political figures is dangerous. All of which is to say the lack of even whispers of a federal criminal investigation into Trump or other high-ranking government officials or political figures is dangerous and damaging. As we saw in Texas over the weekend, it enables Trump and his associates to continue to push their big lie with impunity. And it enables some segments of the population to confirm Trump and Co.’s conclusion that they truly did nothing wrong. After all, we’ve now known about their conduct for more than a year, and no charges have been forthcoming. Ultimately, if the Justice Department doesn’t prosecute Trump and he runs for re-election in 2024, we can expect him to talk about his “confirmed innocence” at every rally. Trump will say the DOJ has had no problems with his actions since 2016. He will boast that the DOJ’s considered decision not to bring a single criminal charge against him is proof positive that he did absolutely nothing wrong. And if the need ever arises, he may have no qualms about trying it all again.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
