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Merrick Garland, U.S. attorney general, speaks during a news conference at the Department of Justice in Washington on Nov. 8, 2021.
Merrick Garland, U.S. attorney general, speaks during a news conference at the Department of Justice in Washington on Nov. 8, 2021. (Ting Shen/Bloomberg)

A year after supporters of Donald Trump stormed the U.S. Capitol, Attorney General Merrick Garland faces critical decisions about whether to indict the former president or his top advisers as the Justice Department continues to fend off charges of politicization.

The department has been using a federal grand jury for an investigation into the Jan. 6 Capitol attack and the events that led up to it, and it could be used to pursue charges against Trump and his allies, according to officials who asked to remain anonymous speaking about the sensitive matter. They said any decision on charges would be driven by the facts and evidence.

The department’s investigation and a separate probe in the House of Representatives are expected to force Garland to make politically fraught choices in the coming months. Charges against Trump and associates could range from criminal obstruction of Congress to conspiring to interfere in a federal election, officials said.

Since taking office last year, Garland has repeatedly sought to contrast his DOJ with that of the Trump era, insisting decisions on prosecutions are made without White House involvement or interference. But the attorney general is finding it impossible to avoid being drawn into the nation’s polarizing political debates from the left and the right.

Far from easing over time, the fallout from the Jan. 6 attack and Trump’s insistence -- without evidence -- that the 2020 election was “stolen” continue to overshadow Garland’s other priorities, fueling bitter disputes in Congress, driving partisan election changes in Republican-controlled states and even affecting the U.S.’s relations with foreign allies.

“Too many people in America are not clearly seeing the threats to our democracy,” said Mary McCord, who spent more than 20 years at the Justice Department and is now executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. “For an unfortunately large percent of the population, there’s an actual belief that the last election was stolen.”

McCord and her legal team are representing the House’s Jan. 6 committee in a lawsuit brought by Trump to prevent his records from being turned over.

In what may be a preview of coming actions, the Justice Department charged former Trump adviser Steve Bannon with criminal contempt of Congress in November for defying subpoenas from the House panel.

“This is gonna be the misdemeanor from hell for Merrick Garland, Nancy Pelosi and Joe Biden,” Bannon said at the time, claiming that President Joe Biden ordered Garland to go after him.

So far, the Justice Department has charged more than 700 individuals for participating in the Capitol riot. More than 150 of them have pleaded guilty to charges from assaulting police to felony obstruction, according to the latest statistics.

The Justice Department and the Federal Bureau of Investigation, which it oversees, declined to comment for this story. A department official said Garland will give public remarks on Wednesday to update the public and department employees on efforts to hold accountable those responsible for the attack on the Capitol, although without naming specific people or charges.

Meanwhile, the House investigation into the effort to prevent Biden from becoming president is moving into a more aggressive phase as lawmakers plan to hold public hearings and produce a report in the coming months.

The lawmakers on the special committee, which is dominated by Democrats, aren’t ruling out more criminal referrals to the Justice Department, possibly including Trump’s actions in pressuring state officials to overturn the 2020 election and in firing up supporters who attacked the Capitol.

Trump said last month that his speech to a rally just before the Capitol attack -- when he said “we’re going to walk down to the Capitol” to “show strength” -- was actually “very calming.”

Some critics argue the Justice Department has been moving too slowly in unraveling the full extent of what Trump and his allies were doing behind the scenes.

Garland, 69, is beginning to come under open pressure from some admirers. In an essay in the New York Times, legal scholar Lawrence Tribe and former federal prosecutors Donald Ayer and Dennis Aftergut lamented that “we have yet to see any clear indicators” that a Justice Department investigation is underway “into the former president and his inner circle,” ranging from “the people who planned, assisted or funded the attempt to overturn the Electoral College vote to those who organized or encouraged the mob attack on the Capitol.”

Top officials at the Justice Department have defended the pace and structure of their probe, saying they’ll follow the evidence wherever it leads.

“The Department of Justice is looking at whether there were laws violated, and if there were prosecutable offenses,” said Marc Raimondi, a former career public servant who was chief of public affairs for the department on Jan. 6. “Just because something might be incredibly unsavory doesn’t necessarily mean it was unlawful.”

Garland is likely to face increased pressure and criticism no matter what he does. He got a taste of that in October, when an appearance before the Senate Judiciary Committee turned into a grilling from Republicans over his approach to everything from addressing threats against local school board officials to illegal immigration.

“The department has moved as far left as it could go,” the panel’s top Republican, Chuck Grassley of Iowa, said at the time. “You politicized the department in ways it shouldn’t be.”

Officials say the contentious politics behind many of these issues isn’t diverting Garland’s focus from the full range of issues he’s addressing. Among them are a controversial Texas abortion law, voting rights measures in several Republican-led states that opponents say are meant to restrict minorities, a tougher stance on alleged police misconduct and stepped-up antitrust enforcement.

Garland also will have to determine what to do if a Trump-era special counsel investigation into the origins of the FBI’s Russia probe generates more recommendations for criminal charges. The almost three-year-old probe by Special Counsel John Durham has led so far to three indictments of lower-level figures.

As the November mid-term elections and the 2024 presidential election grow closer, Garland’s job will only get harder.

“It is complicated because it is so inherently political,” McCord said of the task facing the Justice Department in the Jan. 6 investigation. But she added, “Democracy is not just self-sustaining. If people are not willing anymore to respect the principles that it’s built upon -- which are free and fair elections with independent oversight -- we’re in big trouble.”

Then, there’s the question of what may lie ahead. With the security failings in the Capitol attack -- which contributed directly and indirectly to a number of deaths -- still fresh, the FBI and the Department of Homeland Security confront potential threats that have only grown more “highly volatile,” said John Cohen, who serves as acting head of intelligence and analysis at DHS.

“We continue to experience unacceptable levels of violence by individuals and small groups who are inspired by a blend of ideological beliefs or personal grievances, or both,” Cohen said Dec. 15 at an event hosted by the National Counterterrorism Innovation, Technology, and Education Center and the Program on Extremism at George Washington University.

A major challenge for federal, state and local agencies is disinformation spread by politicians and foreign adversaries.

“The narratives that are being promoted by these threat actors are rapidly finding their way into the mainstream media ecosystem where they’re being amplified by public figures,” Cohen said.

A new poll by the Washington Post and the University of Maryland found that 1 in 3 Americans say they believe violence against the government can sometimes be justified, up from 23% in 2015 and 16% in 2010 in polls by CBS News and the New York Times.

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Bloomberg’s Billy House contributed to this report.


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