Top Democratic leaders in Washington and across the country fear that Donald Trump might be running for president again by the time Attorney General Merrick Garland decides whether to prosecute him and others in his orbit for the January 6 insurrection – and that any action by the Biden Justice Department could be cast by Republicans as little more than a political vendetta.
Two dozen leading Democrats in Washington and across the country tell CNN that Garland may have missed his moment to bring criminal charges against top Trump administration officials before it would get caught up in the 2024 presidential campaign jockeying set to begin later this year, after the midterm elections.
Garland, a longtime federal judge with a quiet demeanor, has vowed to keep politics out of decision-making at the Justice Department, though he says he is not avoiding political cases. And Justice officials say they still have plenty of time in President Joe Biden’s administration should they decide to bring prosecutions for any crimes connected to the effort to overturn the election results.
The Justice Department has traditionally held to a 60-day window before Election Days to hold off on political prosecutions, which would put a cutoff date in early September. However, that usually has applied only to people who are on the ballot in the upcoming election.
But after months of staying quiet, even members of Democratic leadership on Capitol Hill are letting their frustration with that strategy boil over ahead of the first public hearing of the January 6 committee, scheduled for Thursday evening, charging that the attorney general is too focused on restoring norms.
“None of it makes sense to me,” Democratic Rep. Jim Clyburn of South Carolina told CNN of Garland’s approach. “You can’t take politics out of politics. All of these things happening around us are happening within the realm of the political process. You just do your job as best you can, and you can’t go around second-guessing what may or may not be political.”
Garland’s pace, Democratic Rep. Ruben Gallego of Arizona told CNN, could come at an enormous cost for the country.
“I’m just not seeing the urgency from the attorney general,” said Gallego. “He’s thinking more about protecting the institution of the Department of Justice. And I appreciate that, but he has to be thinking about protecting the institution of democracy.”
Some Justice officials bristle at that criticism from Democrats, and they tell CNN that it comes off as self-serving and ignorant of important new developments, such as Monday’s charges of seditious conspiracy against several Proud Boys members. In recent weeks, there are public indications that the investigation has moved beyond the rioters who attacked the Capitol on January 6, 2021, to people who played roles in setting up the rally ahead of the attack and who supported political efforts to stop the certification of the election.
As CNN reported in May, federal criminal investigators have expanded the investigation to gather information about fundraising and organizing for the political rally held immediately before Trump supporters stormed the Capitol, as well as the effort to subvert the Electoral College vote count. The criminal probe into efforts overseen by Trump campaign officials to put forth alternate slates of electors to displace Biden electors also has widened to multiple states.
Justice officials tell CNN they believe that moving slowly and saying little bolsters their credibility, something they’ll need as they investigate people associated with the 2020 Trump campaign. Even so, prosecutors have charged more than 800 defendants as part of the largest investigation in US Justice Department history.
Prosecutors are also operating on legal calendars, not election schedules, and the statute of limitations for many of the January 6 offenses is five years – ending in January 2026. Complex criminal cases take time, and Justice officials say that moving quickly to satisfy critics risks doing even more harm to American democracy. The worst-case scenario would be to bring cases that fall apart at trial.
One of Trump’s favorite political moves is to promote whatever he can to suggest he is being victimized, or, even more so, that he has been exonerated.
Getting tangled in political cycles
The longer the investigation stretches on, though, the likelier it is that any potential prosecution gets tangled up in the 2024 political cycle. The last thing prosecutors want to see is their work portrayed as a political witch hunt.
The White House stands behind Garland, saying in a statement to CNN that he has shown competence and dedication “every single day of the administration.”
The Justice Department declined to discuss the criticism on the record, but at a news conference last month on an unrelated matter, Garland alluded to the general critique.
“Justice Department investigations typically proceed in relative secrecy,” he said. “If we let all possible witnesses know exactly where we are at exactly what moment, it makes it very difficult to do our job of ensuring that the laws are not violated and that those who are accountable are brought to justice.”
In a Harvard commencement address last week, Garland said the insurrection was a “direct attack” on democracy.
“We will follow the facts wherever they lead,” he said.
A Justice official declined further comment beyond Garland’s own words.
For many Democrats, though, the time frame remains their biggest worry. Rep. Adam Schiff, a California Democrat who’s a member of the January 6 committee, argues that a long delay risks inadvertently establishing that the president is above the law.
“This seems to be something that goes beyond, ‘You have to have more than a reasonable doubt before you indict the king,’ to ‘You can’t even start an investigation into credible allegations of criminality of the king,” Schiff said. “I don’t think the Founders would have ever countenanced that. In fact, I think they would have been aghast at that.”
Schiff said he doesn’t know whether to interpret last month’s Justice Department request for transcripts of all the committee’s interviews as evidence it’s being thorough or just getting started. But for all the complaints about Garland’s pace, sources familiar tell CNN that the department still hasn’t been sent the materials.
Still, Democrats say they’re reflecting their own and their constituents’ concerns that they hear back in their districts.
“I want it done well, and want it done right, and want it done thoroughly,” said Rep. David Cicilline, a Rhode Island Democrat who’s a member of the House Judiciary Committee. “But it feels like waiting too long and waiting until it’s closer to an election makes it harder for it to be treated as a serious prosecution free from political interference.”
Dana Nessel, the attorney general of Michigan, worries that federal prosecutors might run out of time.
“The last message that I want to convey is that if you take action to compromise our system of elections, there will be no accountability, because that will inspire more people to engage in illegal conduct,” said Nessel.
Rep. Mondaire Jones of New York, a member of the Judiciary Committee, said he would “never want to tell a prosecutor how to do their job.”
“Most Democrats who have been paying attention to the rise of fascism within the Republican Party and the persistence of Donald Trump as a singular powerful figure within that party are surprised,” Jones told CNN. “I would never want to tell a prosecutor how to do their job, but what I worry about is a squeamishness and a misguided, presumptuous feeling on behalf of the attorney general that not prosecuting Donald Trump is critical to the survival of civility in American politics.”
Critics coming around
Former Assistant US Attorney and Judiciary Committee member Rep. Ted Lieu of California said he wouldn’t want to see Garland try to go after Trump with a misdemeanor – but if that’s all the January 6-related evidence points to, the attorney general should at least go after the former President on the obstruction of justice charges that were laid out and untouched in the Mueller report, Lieu said.
The action between the Garland statements, though, has turned some critics around.
Laurence Tribe, the well-known left-wing Harvard Law professor whose Twitter feed has been a prime source of sniping for much of Garland’s term, said he’s come around. This week’s Proud Boys indictments and the arrest of former Trump aide Peter Navarro, Tribe explained in an email to CNN, “reassure me even further about how methodically, aggressively, and apolitically Merrick Garland is pursuing the attempted coup and the insurrection all the way to the top.”
The White House isn’t allowing a glimmer of public doubt.
Spokesman Andrew Bates told CNN that Biden had chose Garland “because he would be loyal to the law and our Constitution and not be influenced by politics. The Attorney General has displayed those qualities, as well as his dedication to duty and his competence, every single day of the administration—reinforcing that the President made the right choice for the job.”
The White House’s extensive statement of support noted Garland’s independence and integrity and concluded, “President Biden is immensely proud of the Attorney General’s service in this administration, and has no role in investigative priorities or decisions.”
Cedric Richmond, who recently departed as a White House adviser, said he believes the Justice Department must balance the speed he knows many want with restoring the attorney general’s office from the days when Trump openly talked about viewing the role as his personal lawyer.
“Having a political AG would be a mistake,” Richmond said. “When he acts, he will have the credibility of being thoughtful and independent, and following the law.”
CLARIFICATION: This story has been updated to clarify the scope of the Department of Justice’s investigation into January 6th.
CNN’s Evan Perez contributed to this report.