The attorney general needs to do more than chase the 'low-level idiots who actually stormed the Capitol'

In remarks scheduled the day before the one-year anniversary of the Capitol insurrection, Attorney General Merrick Garland swore that his agency would not let power and privilege shield those responsible for the assault on our democracy.

"The Justice Department," he promised, "remains committed to holding all January 6th perpetrators, at any level, accountable under law." Department of Justice (DOJ) lawyers, he said, would "follow the facts wherever they lead."

It's now been nearly three months since those remarks, and unfortunately, it's starting to look very much like the elite Republicans who were part of a conspiracy to overthrow democracy are, in fact, too swaddled by status and wealth to be held accountable under the law. Every day, the extent of the conspiracy and the number of high-level GOP officials and activists involved with Donald Trump's attempted coup becomes more clear. Yet the DOJ appears to be doing little, if anything, to charge them with crimes. It's gotten to the point where the members of the January 6 committee are publicly begging Garland to do something.

"Attorney General Garland," Rep. Elaine Luria, D-Va said Monday evening, "do your job so we can do ours." Rep. Adam Schiff, D-Calif., concurred by noting that "there is no oversight, and without oversight, no accountability."

If Garland's hesitation comes from a belief that prosecuting coup-related crimes is too "political" to be handled by the DOJ, well, then he needs to be a better student of history. It's not just that dealing with people like Trump and his co-conspirators has always been a part of the DOJ's mission, it's that stopping racist and anti-democratic criminal conspiracies like Trump's attempted coup is quite literally what the DOJ was founded to do.

Quick history lesson: The modern DOJ — which was originally called the U.S. Department of Justice and Civil Rights Enforcement — was founded in 1870 under President Ulysses Grant. Its most important mission, as Bryan Greene at the Smithsonian Magazine explained in a 2020 article, "was the protection of black voting rights from the systematic violence of the Ku Klux Klan." In 1871, Congress passed the Ku Klux Klan Act, which empowered the DOJ to break up the white supremacist criminal conspiracies that had risen up throughout the former Confederacy to intimidate Black citizens from voting.

It's not a coincidence that this 1871 law is now being used by civil rights groups, Capitol law enforcement, and some Democratic members of Congress to sue Trump and his alleged co-conspirators for inciting violence on January 6. It's also being leveraged by civil rights groups and Democratic officials to sue Trump supporters engaged in campaign and voter intimidation across the country. That's because the January 6 insurrection and these voter intimidation efforts are very much the historical descendants of the KKK and similar white supremacist groups the DOJ was explicitly founded to quash.

Trump wasn't exactly subtle in his false claims of "voter fraud" aimed at cities like Philadelphia and Detroit. Everything that followed from the Big Lie, from the attempts to decertify the election to the Capitol riot, flowed from the same impulse that shaped the KKK: A belief that white Americans are the only legitimate Americans and that a president elected by a racially diverse coalition is illegitimate. Like the KKK, Trump and anyone else involved in the attempted coup would rather destroy democracy than accept sharing power with people who don't look like them.

The DOJ's failure to act, meanwhile, can't be chalked up to a lack of facts or possible charges, either.

The House of Representatives referred Trump's former chief of staff, Mark Meadows, on contempt of Congress charges three and a half months ago, and so far, Meadows has not been arrested. Instead, more stories have come out about how he and his wife likely committed voter fraud, aka more crimes they will likely be too rich and powerful to have to answer for. The committee's public call for Garland to act this week came after they referred two more Trump officials — Dan Scavino and Peter Navarro — to the DOJ for refusing subpoenas.

In just the past week and a half, the amount of evidence of the high-level conspiracy to overthrow the 2020 election has been frankly overwhelming. Trump fought to keep White House call logs from January 6, 2021 hidden for months. They have finally been turned over to the January 6 committee — and sure enough, seven hours are missing, despite a mountain of witness testimony showing that Trump was glued to his phone throughout this period. Former national security advisor John Bolton has confirmed that Trump liked to talk about using "burner phones," which is exactly the sort of evidence that establishes criminal intent in trials against people who actually face charges because they aren't high-ranking Republicans. A federal judge in California also just ruled "it more likely than not that President Trump" conspired with his lawyer, John Eastman, to commit crimes — and the evidence of that is being entered into the public record.

There's also this big-time story about how Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, was part of a larger circle of people plotting ways for Trump to steal the 2020 election. According to new reporting from the Washington Post, Sen. Ted Cruz, R-Tex., was also heavily involved, fleshing out schemes to block Joe Biden's electoral win certification. While it's unclear if either of them can be charged with crimes, what is clear is that there was an extensive, high-level conspiracy to deny Americans the right to choose their own leaders, one that was fueled by white supremacist intent. Which is exactly the sort of thing the DOJ was founded to stop.

The good news is that there are whispers that the DOJ is planning to hire more lawyers to handle the January 6 investigations, which many DOJ watchers took as a sign that Garland is finally — almost 16 months after the Capitol riot — starting to take seriously his duty to do something about the conspiracy to end democracy. Unfortunately, this may just be more wish-casting. Deputy Attorney General Lisa Monaco did recently reiterate the promise of holding perpetrators accountable "no matter at what level." Still, she mostly talked about how, "We are going to continue to do those cases." So far, "those cases" have strictly involved the low-level idiots who actually stormed the Capitol, as well as some fringe leaders of neo-fascist street gangs. While these folks are known to be in communication with Trump's inner circle, the actual inner circle people — as well as Trump himself — remain untouched.

Perhaps that will change. If so, Garland is nearly out of time.

The midterm elections are a mere seven months away, and if Republicans retake the House of Representatives, as most polling shows they likely will, one thing is certain: They will do anything and everything in their power to destroy any meaningful DOJ investigation into high-ranking coup conspirators. As they are the people who control the budget to hire all those lawyers the DOJ is finally asking for, this could get ugly fast. So the clock is ticking. If Garland has some secret desire to do his job, the time to get it done is nearly out.