Everybody calm down.
Everybody calm down.
T he New York Times bewails the comparative snail’s pace of the Justice Department’s reported investigation of former president Trump and his advisers in schemes to overturn the result of the 2020 election.
Seems prosecutors are so “apparently plodding and methodical” that they frustrate . . . well, it’s not exactly clear who is frustrated except for the Times and its fellow partisans. For all its rebuking of the former president’s tactics, the paper has adopted his “people are saying” schtick for broaching topics that are of more interest to the Times than to most people. In truth, besides Democrats, the January 6 committee controlled by Democrats, and the media allies of Democrats, no one is wondering whether or why the Justice Department’s investigation is lagging behind the committee’s.
As I pointed out over the weekend: The committee, by adopting a slick, television-production approach that suppresses such inconveniences as cross-examination and opposing perspectives, has managed, in the eyes of some, to create the illusion of a detective story constantly turning up new revelations. In the real world, though, millions of people watched the Capitol riot as it happened and were quite familiar with Trump’s appalling conduct in the weeks leading up to it, as well as his failure to act during the hours of the uprising. Then, the nation watched for several weeks as Trump was impeached by the House and tried in the Senate over this episode. Despite its TV-drama presentation, the committee’s summer episodes have not altered our basic understanding of January 6.
Yes, some of the committee’s new details are titillating. And because we already know what this puzzle looks like when fully assembled, the committee’s fitting the pieces together week-by-week may project the appearance of progress. But overall, the story never changes.
By contrast, the Justice Department is expected to come up with something that is genuinely new: criminal liability.
In so doing, prosecutors have to account for facts that don’t fit the committee’s political narrative — e.g., Trump’s statement in his Ellipse speech that the crowd would be “peacefully” marching to the Capitol, which the committee continues to ignore as if it didn’t happen; and the fact that Capitol Police officer Brian Sicknick died of strokes that occurred after the riot, under circumstances where no causal connection between the riot and the strokes has ever been established, contrary to the committee’s disingenuous suggestion, repeated most recently last week, that he died of injuries sustained during the riot. (Nor can we ignore that Democrats have been so desperate to tie Officer Sicknick’s death to Trump that, in leading the slipshod House impeachment prosecution, committee member Jamie Raskin (D., Md.) filed a pretrial brief in the Senate falsely claiming, based on erroneous press reports, that the “insurrectionists killed a Capitol Police officer [Sicknick] by striking him in the head with a fire extinguisher.”)
Unlike the committee, the Justice Department has to deal with such nuisances as judges, defense counsel, and cross-examination. In a criminal trial, if a federal prosecutor dared to point out, as the committee does with cavalier regularity, that witnesses have refused to testify based on their Fifth Amendment rights or lawful privileges, the judge would respond by declaring a mistrial due to government misconduct and referring the prosecutor for professional sanctions — because litigators well know that such assertions violate basic due process as construed by the Supreme Court for decades. Nor are prosecutors at liberty to allege without evidence that a suspect’s actions resulted in someone’s death; they know they have to prove it — unlike a partisan congressional committee, the Justice Department doesn’t get to float a grave accusation and impose on the suspect the burden to prove his innocence. Prosecutors can’t make unhelpful facts disappear by studiously omitting mention of them, and they can’t make up helpful facts for which they lack evidence.
Prosecutors also differ from congressional committees and their media admirers in that they are stuck with events as they happened, not as they might be reimagined. On that score, here’s the Times:
The other line of Justice Department inquiry centers on the effort by a Trump-era Justice Department official, Jeffrey Clark, to pressure Georgia officials not to certify the state’s election results by sending a letter falsely suggesting that the department had found evidence of election fraud there.
Where to begin? Perhaps with the fact that Clark never even tried to pressure Georgia not to “certify the state’s election results.”
He couldn’t have. The letter to which the Times refers is dated December 28, 2020. More than a month earlier, on November 20, Georgia’s Republican secretary of state, Brad Raffensperger, certified then-president-elect Joe Biden as the winner of the state’s popular election for president — as the Times reported at the time. Because of the closeness of the race (which was decided by about 12,000 votes, a margin of victory of about a quarter of a percentage point), there were several recounts, all won by Biden. The federal deadline for challenging state certification was December 8. On December 7, Governor Brian Kemp recertified the result. On December 14, the Electoral College met, and Georgia’s electoral votes were cast in favor of Biden. A photograph accompanying the Times’ December 14 report about the electoral vote shows Georgia’s Democratic electors applauding as their votes were tallied at the state capitol in Atlanta. That Times report correctly described a Trump campaign effort “to form their own competing slates of pro-Trump electors” as “a theatrical effort that has no legal pathway,” because “Electoral College Slates are tied to the winner of the popular vote, and for 2020 they are now formally certified.”
That’s not the half of it. Clark’s December 28 letter, while ridiculous on its face, did not suggest that the Justice Department had found evidence of election fraud in Georgia. It claimed that the DOJ was “investigating various irregularities” in the presidential election, and had “identified significant concerns.” There is a salient difference between “irregularities” (which can involve departures from state statutory law that the public relied on in good faith even if their prescription by election officials or courts was improper under state law) and fraud (which involves intentionally false votes). The Clark letter did not describe any purported fraud. The Justice Department — in official statements rather than unofficial letters — had been clear that there was no actionable election fraud. Nor did the letter ask the state not to certify Biden’s victory. That ship had already sailed. Clark’s objective in the letter seems to have been to suggest that the state legislature convene a special session to consider whether the election result was proper despite the already completed certification of electors.
Oh, one more thing: Clark’s letter was never sent. (See this Times report, titled “Read the Unsent Letter by Jeffrey Clark to Georgia Officials.) It’s just a draft. He didn’t have the authority to send it. His superiors rejected it. Trump may have wanted the letter to be sent, but he never ordered that it be done. He would have had to direct Clark’s superiors to send it (which they would have refused to do), or fired them and appointed Clark acting attorney general (a preposterous idea that would have caused mass DOJ resignations). Trump, as was his wont, pondered these outrageous moves, fulminated over them, and then took no action. That’s because, the committee’s breathless account notwithstanding, the plan had no colorable prospect of success: The Justice Department had already acknowledged that there was no widespread fraud, Georgia’s votes were already certified, the Electoral College had already voted, Democrats were not going to roll over and play dead while Trump had inane letters alleging no concrete fraud sent to state governments, and Trump did not have nearly the votes he would have needed to stop Congress from counting the state-certified electoral votes and acknowledging Biden’s victory on January 6.
The Oval Office showdown prompted by Jeffrey Clark’s letter makes for dramatic television. It bolsters the conclusion that Trump was unfit for office. It was thus great fodder for a nationally broadcast episode of the January 6 committee back in June. But the Clark letter was not a crime. It may seem quaint, but the “plodding and methodical” Justice Department needs proof of a crime before it may properly act.