'The clock is ticking': Legal experts explain why Merrick Garland needs to investigate Trump’s coup attempt before it’s too late

On January 5, the day before the one-year anniversary of the January 6, 2021 insurrection, Attorney General Merrick Garland declared that the U.S. Department of Justice is committed “to holding all January 6 perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” Harvard University law professor Laurence H. Tribe and former federal prosecutor Dennis Aftergut applaud that speech in an op-ed published by the Boston Globe on January 11, but they also express skepticism about Garland’s commitment to following through.

“Garland’s well-crafted words told Americans what they needed to hear,” Tribe and Aftergut write. “We maintain hope that he will swiftly investigate the leaders behind the violent January 6, 2021 Capitol attack by a pro-Trump mob that sought to prevent Congress from certifying the 2020 Electoral College vote. But he must also spearhead an investigation into the earlier, bloodless coup attempt that failed to overturn the election and thus made force the only option to interrupt the transfer of power. Unfortunately, little in the attorney general’s words provided any firm basis for that hope.”

In their op-ed, Tribe and Aftergut emphasize that the violent January 6, 2021 assault on the U.S. Capitol Building was only part of the Trumpian far right’s attempted coup d’état — and that before that, former President Donald Trump and his allies spent weeks trying to overthrow the 2020 presidential election results.

“A volume of public evidence backs the theory that the mob riot was Plan B, the contingency portion of that scheme,” Tribe and Aftergut explain. “In other words, what seems plain from the record is that the Capitol siege was needed only if the preceding strategy, Plan A, foundered. Plan A was designed to find holes in our democratic structure that Donald Trump could drive his truck through to retain power despite election defeat.”

The legal experts add, “In fact, our institutions held. In December, notwithstanding unrelenting pressure from Rudy Giuliani and other Trump agents, no state legislature reversed its election officials’ certifications of Joe Biden’s victory. In Washington, again contrary to Trump’s efforts to intimidate, the Justice Department refused to falsely assert that evidence of widespread ballot fraud existed…. On January 5, 2021, Vice President Mike Pence infuriated Trump by telling him he could not accede to Trump’s request to reject or delay the Electoral College vote count the following day.”

According to Tribe and Aftergut, pre-January 6, 2021 efforts to overturn the election results were “pieces of an unsuccessful, bloodless coup-in-the-making.” And Garland, they write, needs to investigate that part of the attempted coup d’état — not just the violence of January 6, 2021.

“As we and others have said elsewhere,” Tribe and Aftergut argue, “there are, to date, ‘zero signs’ of any Justice Department focus on the plot leaders. Following his speech, Garland has the opportunity to investigate those who headed all parts of the apparent conspiracy. He should seize the moment…. The clock is ticking.”