Someone asked me to explain why Attorney General Merrick Garland hasn’t acted on the criminal referral that the January 6th Committee sent him a few months ago. That’s not a question I can answer directly, because the question itself is based on a complete misunderstanding of how the DOJ goes about acting on a criminal referral, and for that matter what a criminal referral even is. So let’s talk about what these things actually mean.
The above question implies that if the DOJ really wanted to, it could instantly snap its fingers and turn a criminal referral into an indictment. But a congressional criminal referral – even one as thorough as the one generated by the January 6th Committee – is not a criminal indictment or even a criminal case. Indictments are issued by grand juries, not the DOJ. And the DOJ can’t just hand a criminal referral to a grand jury and say “Okay, now indict!”
For the DOJ to get a grand jury to indict Trump for January 6th, it would at the absolute bare minimum have to take the most crucial witnesses cited in the report and put them in front of the grand jury. In fact that’s part of what the DOJ has been doing. You’ve seen all these headlines about the DOJ subpoenaing people like Ivanka Trump, Jared Kushner, and Mike Pence to testify to the grand jury. This is the DOJ forcing these witnesses to make their testimony official in front of a grand jury. And in the case of Pence, the January 6th Committee never was able to get his testimony, so the DOJ is having to fight a legal battle in court that Congress never was able to win.
Before you start saying that the DOJ should have started doing this kind of thing before the January 6th Committee made its criminal referral, it did. Multiple major news outlets have widely documented that the DOJ’s January 6th grand jury process against Donald Trump has dated back to early last year – before the January 6th Committee even held its first public hearing.
And yes, it’s a taken a long time. That’s how it works when you’re building a criminal case against a crime boss, because crime bosses always try to pawn off their own criminal culpability onto others. Donald Trump is already planning to blame January 6th on the attackers themselves, or even his own political allies if necessary. And if the DOJ wants to overcome Trump’s attempt at a reasonable doubt defense at trial, it has to work its way through every level of witness and pick apart all those defenses beforehand.
You don’t have to like that this is the only avenue our criminal justice system has for taking down organized crime bosses, but you do have to accept the fact that this is how it works. Merrick Garland is not sitting at his desk, staring at the criminal referral, and refusing to wave a magic wand that would instantly turn that referral into a viable criminal indictment. That’s child-level fantasyland nonsense, and if you take a minute to think it through, you realize how obvious it is.
The problem is that so many folks in the media and pundit class are pushing precisely this kind of outrage-inducing simplistic nonsense. And while you as a consumer of political news can’t always be expected to know better, the media and pundit class absolutely has to know better. Anyone who analyzes politics for a living, and is framing things in terms of magic wand ideas, is either too clueless to be in the industry, or is making up this kind of nonsense on purpose for attention.
It’s also telling that these kinds of simplistic outrage-inducing narratives are not only incompatible with reality, they also nearly always focus on Merrick Garland – even though Jack Smith has been running the DOJ case against Trump for months. It’s never “Smith is doing nothing,” it’s always “Garland is doing nothing.” That’s because these types have already managed to build up Garland as a bogey man, and they’re intent on continuing to milk it, even though they know damn well that Smith and not Garland is in charge of the case. They just know they can’t get away with generating outrage against Smith, so they pretend Garland is in charge of the case and attack him.
Look, no one is thrilled with the amount of time that it’s taken the DOJ to gradually, painstakingly build the kind of comprehensively intricate criminal case against Donald Trump that’ll actually result in a conviction. We’re all frustrated. We’re all tired of waiting. But making things up doesn’t help the situation. And the folks out there who are falsely claiming that a criminal referral can be instantly converted into an indictment are either way too clueless to ever have any insight you’d ever want to bother listening to, or they’re intentionally misleading you for attention. Either way, you’re best served by tuning these types out.
Bill Palmer is the publisher of the political news outlet Palmer Report