A new report from The Washington Post showcases how slowly and cautiously senior leaders at the Department of Justice (DOJ) and the FBI moved to open up an investigation into former President Donald Trump's actions during his final weeks in office as he attempted to usurp the democratic process by overturning the results of the 2020 presidential election.
Although the reasons behind the snail's pace, bottom-up approach may appear to some to be appropriately nonpartisan, they may have also hindered the investigation in the long-run, allowing evidence that could have helped the probe to potentially be destroyed.
It took almost a year for the inquiry into Trump's actions, prior to and on January 6, 2021, to be opened at the department, according to The Post's reporting. Even then, the investigation didn't put as strong a focus on the former president as it could or should have, former officials told the publication.
Trump decisively lost the 2020 race to President Joe Biden, but has falsely claimed ever since that election fraud was responsible for the outcome. Trump peddled those claims for months after his loss, demanding, without rational or legal justification, that Congress disregard the results of the election and keep him in office for another term.
At the urging of Trump on January 6, 2021 — the day that congressional lawmakers were set to certify the election outcome through the counting of the Electoral College — a mob of the former president's loyalists descended on the U.S. Capitol building. There, the mob turned violent as it forced its way into the halls of Congress, disrupting the certification count for several hours. Dozens in the mob engaged in chants calling for the killing of lawmakers, including Vice President Mike Pence and Speaker of the House Nancy Pelosi.
Behind the scenes and in the weeks leading up to January 6, Trump's presidential campaign, too, was attempting to undermine the Electoral College. By sending fake electors from key states where Trump had lost they hoped to have those invalid votes included in the certification process. However, upon consulting with legal advisers at the time, Vice President Pence decided not to take part in the scheme, much to Trump's public dissatisfaction).
Rather than launch a two-prong investigation into both actions, however, the DOJ and the FBI — including Attorney General Merrick Garland, upon his swearing-in to lead the department — decided to approach the investigation in a different way, focusing first on those who directly attacked the Capitol and pursuing others higher up in the Trump administration later – if the evidence led to them.
The decision to approach the investigation in that manner was to dispel any appearance of being partisan in the investigation. Of course, at several junctures between then and when the DOJ finally started formally investigating Trump, charges of partisanship were levied at Garland and the department anyway. Such charges remain, although they are being made by Trump and his loyalists without proof of any kind.
Acting in this manner made sense to leadership in the DOJ, but some former investigators, speaking to The Post, said it was an inappropriate approach to take.
"You can work so hard not to be a partisan that you're failing to do your job," one former DOJ official said.
Another former official said that things got so bad, in terms of purposely pushing focus away from Trump, that "you couldn't use the T word" (alluding to the former president's last name) when discussing the investigation.
The decision to avoid looking at Trump's actions, as well as those of his immediate underlings, lasted for almost a year. Even then, it took until April 2022 for the DOJ and the FBI to decide to investigate the fake electors scheme.
Earlier this month, Trump was indicted on charges relating to his improper hoarding of government documents, including hundreds marked classified, and his obstruction of efforts by federal officials to get them returned.
In its latest reporting, The Post said that it was "unclear" whether DOJ officials, taking a different approach and investigating Trump sooner over his efforts to overturn the results of the 2020 race, could have filed charges against him even before the indictment over the Mar-a-Lago documents. Reporting from the publication, however, appears to suggest that it could have been possible if the investigation had begun earlier and without excessive emphasis on not wanting to appear partisan.
In separate interviews after publishing it, the authors of The Post article, Carol Leonnig and Aaron Davis, both alluded to issues that arose as a result of the decision to take a slow approach to opening the Trump inquiry.
The DOJ, it seemed, was embarrassed about not taking action sooner, after the congressional January 6 committee presented its case to the American people about what Trump had done, Leonnig said on MSNBC Monday.
In the summer of 2022, the department was still "sort of [turning] its eyes away from" investigating Trump over January 6 and his attempt to usurp the democratic process, Leonnig explained, "until it became a drumbeat of criticism, news stories" lambasting the DOJ for being too slow.
Beyond investigating things happening behind the scenes, it was also clear that "Trump committed crimes in plain sight," Leonnig said, adding:
He committed the crime of blocking an official proceeding. Even with the limits to their investigative powers, he committed the crimes of insurrection. I mean, there were criminal acts that were ignored.
Even though the DOJ has denied that the January 6 committee played a role in how it treated its own inquiry, "when you interview people who were right in the thick of it, they said, 'Look, we were embarrassed and goaded into it,'" Leonnig elaborated.
Davis, interviewed by the PBS "NewsHour" about his reporting, said that the refusal to expedite investigating Trump may have hampered the inquiry.
"In those early months, White House officials were not interviewed," Davis said. "Records were potentially lost. Social media posts and private encrypted messages were potentially deleted. We just don't know what could have been done quicker, if we were always destined to be in this position now, where Trump is running again and his potential legal culpability from 2020 is still an open question."
