This is a long post, but the article is much longer. If you want all the details, they're well laid out there.
I remember at the time people were speculating that the FBI/DOJ likely had a secret investigation going into Trump. Apparently not.[Michael R. Sherwin, then-acting U.S. attorney for the District of Columbia, and his] office, with the help of the FBI, was responsible for prosecuting all crimes stemming from the Jan. 6 attack. He had made headlines the day after by refusing to rule out the possibility that President Donald Trump himself could be culpable. “We are looking at all actors, not only the people who went into the building,” Sherwin said in response to a reporter’s question about Trump. “If the evidence fits the elements of a crime, they’re going to be charged.”
But according to a copy of the briefing document, absent from Sherwin’s 11-page presentation to Garland on March 11, 2021, was any reference to Trump or his advisers — those who did not go to the Capitol riot but orchestrated events that led to it.
A Washington Post investigation found that more than a year would pass before prosecutors and FBI agents jointly embarked on a formal probe of actions directed from the White House to try to steal the election.
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[AG Merrick] Garland and the deputy attorney general, Lisa Monaco, charted a cautious course aimed at restoring public trust in the department.
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In November 2022, after Trump announced he was again running for president, making him a potential 2024 rival to President Biden, Garland appointed special counsel Jack Smith to take over the investigation into Trump’s attempt to overturn the 2020 election.
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The effort to investigate Trump over classified records has had its own obstacles, including FBI agents who resisted raiding the former president’s home.
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Whether a decision about Trump’s culpability for Jan. 6 could have come any earlier is unclear. The delays in examining that question began before Garland was even confirmed. Sherwin, senior Justice Department officials and Paul Abbate, the top deputy to FBI Director Christopher A. Wray, quashed a plan by prosecutors in the U.S. attorney’s office to directly investigate Trump associates for any links to the riot, deeming it premature. [...] Instead, they insisted on a methodical approach — focusing first on rioters and going up the ladder.
The strategy was embraced by Garland, Monaco and Wray. They remained committed to it even as evidence emerged of an organized, weeks-long effort by Trump and his advisers before Jan. 6 to pressure state leaders, Justice officials and Vice President Mike Pence to block the certification of Biden’s victory.
In the weeks before Jan. 6, Trump supporters boasted publicly that they had submitted fake electors on his behalf, but the Justice Department declined to investigate the matter in February 2021. [...] The department did not actively probe the effort for nearly a year, and the FBI did not open an investigation of the electors scheme until April 2022.
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For many months after the attack, prosecutors did not interview White House aides or other key witnesses [...] . In that time, communications were put at risk of being lost or deleted and memories left to fade.
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William P. Barr had left his post as attorney general two weeks before the attack amid a growing rift with Trump. His successor, Jeffrey Rosen, held the office for less than a month, and Garland would not be sworn in until March 11. Biden’s pick to replace Sherwin as the U.S. attorney in D.C. would not take office for another 10 months.
At the FBI, Trump, over the previous year, had repeatedly threatened to fire Wray, 56, who had in turn tried to keep a low profile. [...] Since then, Wray and his team sought to avoid even an appearance of top-down influence by having local field offices run investigations and make day-to-day decisions. In fact, when it came to the Jan. 6 investigation, agents noticed that Wray did not travel the five blocks from FBI headquarters to the bureau’s Washington field office running the investigation for more than 21 months after the attack.
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Two days after the Capitol attack, the FBI began announcing charges that were meant to send a message.
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Beyond short written or video statements denouncing the Jan. 6 violence in general, however, neither Wray nor Rosen came out publicly to reinforce that message.
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[A] group of prosecutors led by J.P. Cooney, the head of the fraud and public corruption section at the U.S. attorney’s office, argued that the existing structure of the probe overlooked a key investigative angle. They sought to open a new front, based partly on publicly available evidence, including from social media, that linked some extremists involved in the riot to people in Trump’s orbit — including Roger Stone, Trump’s longest-serving political adviser; Ali Alexander, an organizer of the “Stop the Steal” rally that preceded the riot; and Alex Jones, the Infowars host.
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In 2019, [Cooney] oversaw the team that convicted Stone on charges of witness tampering and lying to Congress. Cooney signed off on recommending a prison sentence of seven to nine years, but Barr pressed to cut it by more than half after Trump tweeted that it was “horrible and very unfair.” Trump later pardoned Stone.
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In February 2021, Cooney took his proposal to investigate the ties with people in Trump’s orbit directly to a group of senior agents in the FBI’s public corruption division.
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According to three people who either viewed or were briefed on Cooney’s plan, it called for a task force to embark on a wide-ranging effort, including seeking phone records for Stone, as well as Alexander. Cooney wanted investigators to follow the money — to trace who had financed the false claims of a stolen election and paid for the travel of rallygoers-turned-rioters. He was urging investigators to probe the connection between Stone and members of the Oath Keepers.
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Cooney’s plan would have started agents looking from the top down as well, including directly investigating a senior Trump ally.
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[A meeting was called with top deputies at the FBI, but] Cooney wasn’t there to defend his plan. [...] Cooney wanted membership rolls for Oath Keepers as well as groups that had obtained permits for rallies on Jan. 6, looking for possible links and witnesses. [Two officials at the meeting] saw those steps as treading on First Amendment-protected activities.
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Some in the group also acknowledged the political risks. [...] Seeking the communications of a high-profile Trump ally such as Stone could trigger a social media post from Trump decrying yet another FBI investigation as a “witch hunt.” And what if the probe turned up nothing? Some were mindful, too, that investigating public figures demanded a high degree of confidence, because even a probe that finds no crime can unfairly impugn them.
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In the U.S. attorney’s office, budding investigative work around the finances of Trump backers was halted, an internal record shows, including into Jones, who had boasted of paying a half-million dollars for the president’s Jan. 6 rally and claimed the White House had asked him to lead the march to the Capitol.
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About the same time, attorneys at Main Justice declined another proposal that would have squarely focused prosecutors on documents that Trump used to pressure Pence not to certify the election for Biden.
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The National Archives inspector general’s office asked the Justice Department’s election crimes branch to consider investigating the seemingly coordinated effort in swing states [to replace electors]. Citing its prosecutors’ discretion, the department told the Archives it would not pursue the topic.
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“A decision was made early on to focus DOJ resources on the riot,” said one former Justice Department official familiar with the debates. “The notion of opening up on Trump and high-level political operatives was seen as fraught with peril."
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Some prosecutors even had the impression that Trump had become a taboo topic at Main Justice. Colleagues responsible for preparing briefing materials and updates for Garland and Monaco were warned to focus on foot soldiers and to avoid mentioning Trump or his close allies.
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By fall, some of Biden’s Justice Department nominees began to finally win Senate confirmation.
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With that, 10 months after the attack on the Capitol, Garland finally had a permanent team of chief prosecutors in place to guide the investigation.
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On Nov. 1, 2021, Matthew G. Olsen was sworn in as assistant attorney general for national security.
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Olsen, 61, pressed to take on a role in the Jan. 6 casework, which had been led until then by the D.C. U.S. attorney’s office, according to people familiar with the offices at the time. He argued to senior Justice Department officials that an effort to block the peaceful transfer of power was squarely in the vein of what the national security division should be focused on.
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Since then, with successive new indictments, the government’s evidence had grown stronger.
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The bottom-up approach that had dominated nearly a year of the government’s time had not yielded any significant connection to Trump’s orbit.
“It had become clear that the odds were very low that ‘bottom-up’ was ever going to get very high,” said one of those individuals. “At some point, there was no ladder from here to there.”
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At a meeting in November 2021, W[Thomas] indom asked [an assistant director, Steven] D’Antuono to assist in a grand jury investigation, which would include subpoenaing the Willard hotel for billing information from the time when Trump lawyer Rudy Giuliani was working with Stephen K. Bannon, Boris Epshteyn and other Trump associates in their “war room.”
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“I’m not serving subpoenas on the friggin’ Willard,” D’Antuono told Windom, according to a person familiar with their discussions. “You don’t have enough to issue subpoenas.”
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D’Antuono offered instead to give Windom full access to the FBI’s trove of evidence about Oath Keeper and Proud Boy extremists involved in the riot. Maybe Windom would find a communication or financial link between rioters and Trump deputies, D’Antuono suggested. The two also briefly discussed fake electors,
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In one of several examples, three former military generals warned in The Post that the country had to prepare for the next insurrection after not a single leader who incited the violence had been held to account, and they pressed the Justice Department to “show more urgency.”ut the FBI wasn’t ready to move forward on that topic either.
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On Jan. 13, 2022, the department indicted Rhodes and 10 other Oath Keepers on charges of seditious conspiracy. It did not quiet the criticism, but instead put a spotlight on signs the Justice Department was not, in comparison with the House committee, working as actively to investigate Trump’s role in the attempted coup.
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Behind the scenes, federal prosecutors in Michigan who received Nessel’s referral were waiting to hear from Monaco’s office about how Main Justice wanted to proceed. National Archives officials were dumbstruck; the Justice Department was suddenly interested in the fake electors evidence it had declined to pursue a year earlier.
One person directly familiar with the department’s new interest in the case said it felt as though the department was reacting to the House committee’s work as well as heightened media coverage and commentary. “Only after they were embarrassed did they start looking,” the person said.
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Within a few weeks, prosecutors from the U.S. attorney’s office were again in a meeting with D’Antuono. This time, they did not attempt to link the electors scheme to violence on Jan. 6 but presented it as worthy of its own investigation.
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The process did not go quickly. Lawyers at the FBI and Justice Department launched into what became many weeks of debate over the justification for the investigation and how it should be worded; one time-consuming issue became whether to name Trump as a subject.
With the FBI investigation still not opened, late in March a federal judge presiding over a civil case made a startling ruling: Trump “more likely than not” committed federal crimes in trying to obstruct the congressional count of electoral college votes.
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“More than a year after the attack on our Capitol, the public is still searching for accountability. … If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
In April 2022, more than 15 months after the attack, [FBI director Chris] Wray signed off on the authorization opening a criminal investigation into the fake electors plot.
Still, the FBI was tentative: Internally, some of the ex-president’s advisers and his reelection campaign were identified as the focus of the bureau’s probe, but not Trump.
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Then, on Nov. 18, Garland abruptly summoned to Main Justice the D.C.-based prosecutors working on the Jan. 6 conspiracy as well as those who had already gathered extensive evidence of Trump concealing classified records at his Mar-a-Lago resort. The attorney general told them that to ensure the appearance of independence into the two probes of a potential Biden rival, he would appoint a special counsel later that day.
WaPo
And now, of course, it's too late to bring anything to trial before the 2024 election.A new chief prosecutor would typically need weeks or months to get up to speed on a high-priority investigation. But Smith issued subpoenas in the Jan. 6 probe after just four days, picking up where the U.S. attorney’s office had left off, seeking communications between officials in three swing states and Trump, his campaign, and 19 advisers and attorneys who had worked to keep him in power.
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In several cases, before the special counsel’s office got in touch, witnesses in the fake electors scheme hadn’t heard from the FBI in almost a year and thought the case was dead. Similarly, firsthand witnesses to Trump’s Jan. 2, 2021, call to Georgia Secretary of State Brad Raffensperger — in which Trump asked him to “find” enough votes to win that state — were not interviewed by the Justice Department until this year, after Smith’s team contacted them.
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On Tuesday, as Trump pleaded not guilty to those charges in federal court in Miami, Smith’s investigation into efforts to steal the election continued: Michael McDonald and Jim DeGraffenreid, the chairman and vice chairman of the Nevada Republican Party who had signed a document claiming to be electors for Trump, entered the area of the D.C. federal courthouse where a grand jury has been meeting on cases related to Jan. 6.
Judge Aileen Cannon set Donald Trump’s trial for hoarding 31 highly classified documents for August 14, 2023.
The trial won’t happen that quickly. This is, instead, an order stemming from Speedy Trial Act (and in any case, the trial would be set back a few weeks once Walt Nauta is arraigned, because barring a plea or other unforeseen developments, they will be tried together). Per the boilerplate, the two sides have to file Speedy Trial notices every 21 days from here on out.
Empty Wheel
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