WASHINGTON — A year and a half after thousands of Donald Trump diehards overran the U.S. Capitol, prosecutors have scored relatively few felony convictions and face growing pressure to go after targets including the organizers and the former president himself.
The Justice Department’s massive investigation — into the riot and deeper efforts to overturn Joe Biden’s election — has scored about 50 felony guilty pleas out of more than 800 defendants charged since the mob breached the neoclassical building in January 2021, in the most serious attack on American democracy in the modern era.
As the congressional committee looking into the insurrection prepares to hold its first public hearings this week, the only charges brought against Trump aides have been for failing to respond to the panel’s demands for information. Of those charged for the events of Jan. 6, at least 235 have pleaded guilty to misdemeanor offenses such as illegal parading. About 70 — still fewer than 10% of the total — have been sentenced to time behind bars for assaulting law enforcement officers and other crimes.
Even at that, the Justice Department has had to bring in reinforcements from all over the country to help handle the caseload. It has detailed assistant U.S. attorneys nationwide and sought support from all 56 field offices of the Federal Bureau of Investigation, as it sifts through reams of surveillance footage, social media posts and testimony. In its budget request for 2023, the department is seeking $34 million to hire 131 more lawyers to work on the case.
“It is the most complex and wide-ranging that I’ve seen in the department’s history,” Deputy Attorney General Lisa Monaco said of the investigation, in a recent discussion with Bloomberg about corporate crime. “It’s a top priority of the department to follow the facts wherever they go, including to hold accountable perpetrators at any level.”
The probe has made headway. It has led to arrests in almost all 50 states. The guilty pleas include three members of the far-right Oath Keepers, who are cooperating with the inquiry. The U.S. has prevailed at all five jury trials held so far that included felony charges. On Friday it announced the indictment of former White House trade adviser Peter Navarro for defying a subpoena by the House committee, following longtime Trump adviser Steve Bannon’s indictment in November, and after a recent subpoena seeking communications within Trump’s inner circle.
And just Monday, amid criticism of the investigation’s pace, prosecutors added charges of seditious conspiracy to its case against members of the Proud Boys, three days before the congressional committee launches its hearings.
The Justice Department is now at a critical point in the case. Although it is traditionally independent of the White House, the attorney general is a presidential appointee, and Biden’s Democratic Party could use a boost from high-profile convictions in the case — and would be damaged by a flop. It all adds up to a major test of the department and of Attorney General Merrick Garland in particular, who has pledged to defend the rule of law while trying to keep Justice insulated from politics.
Garland said at a news conference last month that the department deliberately refrains from talking publicly about ongoing cases and investigations.
“If we let all possible witnesses know exactly where we are, at exactly what moment, it makes it very difficult for us to do our job of ensuring that the laws are not violated and that those who are accountable are brought to justice,” he said.
It isn’t enough, said Melanie Sloan, senior adviser for the government watchdog American Oversight and a former federal prosecutor.
“Whatever DoJ is doing, I wish they were taking a more aggressive approach,” Sloan said. At the same time, she said, the department faces a quandary.
“Seditious conspiracy charges are extremely rare, so prosecutors don’t have experience trying these sorts of cases, and have their work cut out for them,” she said.
The U.S. attorney’s office for the District of Columbia, which is leading the case, declined to discuss details, as did Monaco.
“You’ll see the results of our investigation when we bring actions in court,” said the 54-year-old prosecutor, who has spent 16 years at the Justice Department and once led its national security division. “Which is as it should be.”
One result is the conviction last month of former Army reservist and Navy security guard Timothy Hale-Cusanelli, who hoped to foment a civil war when he stormed the Capitol, boasting to a friend afterward that the “tree of liberty must be refreshed with the blood of patriots and tyrants,” according to prosecutors. Instead, the New Jersey man, 32, now faces as many as 20 years in prison after a jury found him guilty of felony obstruction of an official proceeding and a slew of misdemeanors.
The longest sentence has gone to Florida resident Robert Palmer, 54, who pleaded guilty in October to assaulting and resisting law enforcement officers using a dangerous weapon and got five years and three months in prison. Other significant wins include getting the three Oath Keepers to plead guilty to the most serious felony charge of seditious conspiracy and to cooperate with the government.
But so far most of the people arrested and charged in the case have received probation and a fine, according to data from the Justice Department and court documents. Critics say the probe has been plodding when it comes to higher-level acts by Trump and his closest associates. Current and former Justice officials say the magnitude of the case has required a methodical approach.
Frustration with the department surfaced publicly during a March 28 hearing when some committee members urged swifter action in charging more of Trump’s allies for refusing to comply with their subpoenas.
“Attorney General Garland, do your job so that we can do ours,” said Rep. Elaine Luria, a Virginia Democrat.
The investigation’s current, more aggressive phase includes grand jury subpoenas for information about potential felonies committed by lawyers and organizers ahead of Jan. 6 to stop the vote’s certification. One focus is on efforts to appoint electors in states Trump lost to reverse the result, according to a subpoena reviewed by Bloomberg. The subpoena seeks documents to, from or including Trump lawyers Rudy Giuliani and John Eastman.
Other subpoenas have sought information about organizers of Trump rallies and any government officials who tried to obstruct the certification of the election, according to two people familiar with the matter, who asked to remain anonymous to speak about grand jury proceedings.
In a filing last week before his indictment, Navarro said a subpoena he received calls on him to turn over records tied to any communications with Trump. His case comes as the committee is deciding how to respond to resistance from five House Republicans who have also been subpoenaed to testify, including Republican leader Kevin McCarthy.
“We know nothing about this,” Robert Costello, a lawyer for Giuliani, said in an email, referring to what the subpoena is seeking. Lawyers for Eastman and Trump, and Navarro, who is representing himself, didn’t respond to requests for comment.
Among the cases well along in the courts, the Justice Department’s biggest test will come in August, with the trial of Proud Boys members accused of conspiracy to obstruct an official proceeding, followed in September by a trial of Oath Keepers on charges of seditious conspiracy.
Defense attorneys in the case recognize its unusual nature too.
“We’re trying one of the most significant cases in federal history,” said James Lee Bright, a lawyer for Oath Keepers founder Elmer Stewart Rhodes. Bright said the government has provided about 10 terabytes of information to his legal team in the required exchange of information.
“I don’t think I’ve ever had a case, in nearly 27 years in practicing law, that has had this much evidence,” he said.
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(With assistance from Billy House.)
