Is Merrick Garland finally ready to indict Donald Trump?

The media have been quick to rubbish Attorney General Merrick Garland for his failure so far to indict former President Trump over the Jan. 6 attack on the U.S. Capitol. They have tarred him with epithets worthy of Trump himself, such as “Merrick the Mild” and “Merrick the Meek.” And a host of former prosecutors and law professors have criticized his inaction, saying that Garland needs to indict Trump to vindicate the rule of law.

We don’t know for certain, but it appears that Garland’s Justice Department has yet to convene a grand jury to investigate the affair. Were they subpoenaing witnesses before the grand jury, we would have heard something about it from reporters hanging around the court house or from the witnesses’ lawyers.

Justice appears to be riding the coattails of the House select committee, which has served a flurry of subpoenas, and has already referred two recalcitrant witnesses, Stephen Bannon and Mark Meadows, to Justice for criminal prosecution only to see Bannon indicted for a misdemeanor and Meadows so far uncharged some fourscore and seven days after the criminal reference. 

The case against Meadows is a simple one, and the long delay is vexing. It is possible that Justice is using the time to investigate, but this seems unlikely in light of the Doric simplicity of the facts. Meadows refused to testify. Full stop. It is also possible that Justice had decided not to indict Meadows for contempt of Congress; but then, why the silence? If they had let Meadows know he was off the hook, he would have loudly told the press about how he was exonerated. Finally, it is possible that the government and Meadows are crafting a deal, some testimony in exchange for no indictment. Time will certainly tell us the answer.

Garland has vowed to follow the law and the facts wherever they may lead him. But many legal observers have concluded he is timid and overly cautious, fearful that we appear to be a banana republic indicting, and possibly jailing, our former leaders because they are now politically out of favor. Of course, the total answer is that we look like a banana republic if we don’t hold our former leaders accountable for the serious crimes they may have committed, such as sedition, incitement to insurrection or conspiracy to defraud the United States.

Frustrated at the inaction, the redoubtable Harvard Law professor Laurence Tribe has called on Garland to appoint a special counsel. Tribe argues that a special counsel is “the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges.” Tribe says that such an appointment is “imperative.” 

Appointment of a special counsel would give Garland some political cover, even though a special counsel is not institutionally independent of the Justice Department. Yet, so far, Tribe’s urgent clarion call has fallen on deaf ears.

Trump’s strategy of course is to run out the clock. With the midterm elections less than eight months off, and a widely expected outcome that Republicans will take the House, the select committee investigating Jan. 6 may be on its last legs. 

Yet, as the man said, “it isn’t over ‘til it’s over.” Only recently, there have been unmistakable signs and portents that the inquiry into the events of Jan. 6 may have brought Trump to his “Watergate moment.” The most notable events in recent days are as follows:

• Earlier this month, the House select committee investigating the Capitol siege alleged in a federal court filing that it had amassed evidence that Trump illegally schemed to stop the lawful transfer of power to President Biden.
• A D.C. federal jury convicted Guy Reffitt, a member of the far-right militia group the Texas Three Percenters, of obstruction despite claims of First Amendment rights to protest and assemble. Channeling Trump’s possible defenses, Reffitt’s lawyer argued to the jury that “Guy does brag a lot. He embellishes.” The defense arguments did not impress the jury. Legal experts called the conviction just the “tip of the iceberg.”
• The Justice Department has just obtained an indictment of “Enrique” Tarrio, leader of the Proud Boys. Tarrio stands charged with conspiracy even though he was not at the Capitol itself. The indictment charges that before leaving Washington, Tarrio met with Oath Keepers leader Stewart Rhodes, as well as others. He texted with someone unnamed about “revolution,” and sent a plan called “1776 Returns” that called for the occupation of “crucial buildings” in Washington with “as many people as possible.” Tarrio allegedly agreed with the texter, adding: “I am not playing games.” If convicted, he faces a 20-year prison sentence.

If Reffitt receives a stiff sentence, and Tarrio is convicted, they may be incentivized to “cooperate” with the government as did Oath Keepers member Joshua James, who is cooperating as part of a guilty plea for obstructing an official proceeding of Congress, and for seditious conspiracy culminating in the Jan. 6 attack. Such testimony of co-conspirators could provide evidence supporting broader conspiracy charges against Trump or his closest associates.

• A federal judge in Washington, D.C. said he would read 111 subpoenaed emails sent by Trump attorney John Eastman between Jan. 4 and Jan. 7 to rule on whether they are protected by the attorney-client privilege. Eastman is a key figure in the plot to get former Vice President Mike Pence to overturn the election.
• Kimberly Guilfoyle, the strident fiancée of Donald Trump Jr., has been subpoenaed by the select committee on the alleged basis that she was in “direct contact with key individuals, raised funds for the rally preceding the attack, and participated in that event.” She broke her promise to appear before the committee for a voluntary interview. Whether a criminal case comes out of Guilfoyle’s possible refusal to testify remains to be seen.
• Sidney Powell, Trump’s former lawyer and lawyer for convicted Gen. Michael Flynn, is before a Texas court for professional misconduct in connection with her efforts to overturn the 2020 election. According to BuzzFeed, her nonprofit has raised more than $15 million to pay the legal expense of Oath Keepers. The Texas disciplinary proceeding will certainly attract the attention of the Department of Justice.

As the Washington Post concluded in its article reporting the Reffitt verdict: “The notion that Attorney General Merrick Garland is slow-walking charges against Trump or has decided not to go after him is inconsistent with the department’s actions to date. Garland might just be warming up to take on the man whose refusal to accept defeat resulted in the most lethal armed insurrection since the Civil War.”

As Trump signaled to the Proud Boys in his September 2020 debate with Biden, “stand back and stand by.” Garland may not be shooting so many blanks as his critics claim.

James D. Zirin is a former federal prosecutor in the Southern District of New York.