Twice this week, we saw how serious Department of Justice prosecutors are about cases they’ve brought connected to January 6. They’re bringing power tools to the job of convicting those they’ve indicted.
The aggressiveness is a good sign looking forward, especially if Attorney General Merrick Garland keeps his word about going after the insurrection planners and if he is similarly determined to investigate the failed bloodless coup attempt that preceded January 6. We’ve glimpsed an important beginning of that investigation, as a torrent of evidence flows from the House Select Committee and pressures the AG to accelerate.
First, the tough prosecutorial tactics. We learned of them on February 8 in insurrectionist Guy Reffitt’s case. He is accused of civil disorder, obstructing an official proceeding, assaulting multiple police officers, and unlawfully bringing a gun to the Capitol siege.
The DOJ’s pre-trial disclosures revealed that prosecutors will call Reffitt’s children to testify against him. In addition, the DOJ has granted immunity to “R.H.,” Reffitt’s fellow “Three Percenter” militia member who traveled with him to DC on January 6. Granting immunity to R.H. was necessary to get his testimony.
Grants of immunity require high-level DOJ approvals, and for good reason. Immunity is, in virtually all cases, a get-out-of-jail card. Which is why the Justice Department can be stingy granting immunity. It does so when convicting someone with greater culpability is a priority.
That bodes well for any future prosecutions of individuals up the ladder.
We gleaned something similar on February 4 about the combativeness of DOJ prosecutors assigned to try Steve Bannon, indicted for his criminal contempt in stonewalling the select committee. Prosecutors have sought the telephone logs and records tracking Bannon’s lawyer’s emails (not their content). That unusual tactic, too, requires approval at the highest levels of the DOJ because of the sacrosanct attorney-client privilege.
The DOJ’s justification is clear. Robert Costello, Bannon’s lawyer, had laid the groundwork for an “advice of counsel” defense in a November 11 interview that he gave to the FBI. He told agents that he had instructed Bannon not to comply with the subpoena on the ground that it was unlawful.
That was a deliberate strategy. If credited by a jury, an “advice of counsel” defense means that the client lacks criminal intent to break the law because his lawyer said the conduct was ok. But raising the defense also waives the attorney-client privilege because the jury is entitled to hear what the lawyer advised. And thus, Costello opened the door to prosecutors investigating his advice.
He and Bannon knew this. That is why the motion they filed with the trial judge never directly challenged the prosecutor’s right to pursue the evidence.
Even so, the government’s rare action affirms that, as with Reffit’s prosecution, AG Garland is pulling out all stops to convict Bannon.
The same should also be true of any investigations that arise from Trump’s pre-January 6 efforts to stay in power without violence. Late last month, the Justice Department signaled its first step in that direction, taking the unusual step of announcing that it was investigating the bogus “Republican elector slate certificate” scheme from seven states.
That plot reportedly involved forgeries and fraudulent representations that Rudy Giuliani and the Trump campaign had allegedly orchestrated in December 2020. Five of the states’ certificates falsely stated that the pro-Trump electors listed on the slates had been “duly elected.” In fact, Trump lost the elections in those states.
It is inevitable that an investigation of that scheme will expose deeper layers of that onion.
Indeed, we saw as much on February 9. The Washington Post reported that Giuliani was also at the center of another scheme to overturn the election. He had asked a prosecutor in Michigan to seize voting machines and turn them over to the Trump team. In this we hear echoes of last month’s news on two draft White House executive orders that would have authorized the military and others to seize election machines in multiple battleground states.
Of course, all who believe that no one is above the law wish that the Garland DOJ would move faster, especially in pursuing the leaders of the pre-January 6 plot to keep Trump in power. On the other hand, clues have emerged that it is too early to panic—the Department is acting aggressively . . . and moving forward on that path.
As the fraudulent electoral slate investigation proceeds, do not be surprised to see criminal charges ensue. If they do, expect the Justice Department to be just as forceful as we saw last week with Steve Bannon and insurrectionist Guy Reffitt.