On Tuesday, writing for The New York Times, former Solicitor General Neal Katyal outlined how the evidence presented by the House Select Committee on the January 6 attack makes it impossible for Attorney General Merrick Garland not to criminally investigate members of former President Donald Trump's inner circle, and possibly the president himself.
"Merrick Garland and high officials at the Justice Department, not nine justices, are the immediate decision makers. Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one," wrote Katyal. "A highly respected federal judge, David Carter, has already said in a published opinion that 'the court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.' Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should."
"But we’ve seen no signs of such an investigation," said Katyal. "Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened."
As Katyal argued, the public hearings, which have already revealed damning new facts about the Trump team's response to the Capitol attack, could be an effective way of pushing the DOJ to take further action.
"Public hearings serve a subtle function," wrote Katyal. "They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what Trump did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public."
"If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled," concluded Katyal. "If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department. Because history will."
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