The Merrick Garland news cycle

Last week, Rachel Maddow went on her MSNBC show and brandished a document that she said hadn’t been published anywhere else. Headlined “ELECTION YEAR SENSITIVITIES,” the document was an internal Justice Department memo—circulated in May and signed by Merrick Garland, the attorney general—that reminded staffers of department policies around investigating political candidates, and specifically pointed to a 2020 memo in which William Barr, Garland’s Trump-era predecessor, said that any investigation into a presidential candidate or their senior staff would have to be personally cleared by the attorney general. Maddow, whose tone sounded skeptical, noted that Trump may soon declare his own candidacy for the 2024 presidential election, and that Garland’s acceptance of Barr’s stance could thus affect whether and how Trump is investigated for trying to overturn the 2020 election.

Maddow’s scoop aroused some alarmed online chatter among members of the Merrick Garland, do your job! caucus. But various pundits countered that it wasn’t that big a deal at all: Garland, they said, had merely affirmed established precedent—and was always likely to have to authorize any investigation into Trump given the latter’s political stature, candidate for office or not. The Washington Post’s Aaron Blake wrote that the memo “probably doesn’t warrant nearly the kind of consternation it has engendered,” while the blogger Marcy Wheeler accused Maddow of “irresponsible sensationalism,” noting that the Justice Department arrested a political candidate, for governor of Michigan, in connection with January 6 after Garland’s memo came down. In a video message posted online, Doug Jones, the former senator who was in the running to be Biden’s attorney general before Garland got the nod, said that he “knows folks are anxious” about accountability for January 6, but that the memo, as reported by Maddow, appeared innocuous. “It says that no one should open an investigation for the purpose of affecting the election,” Jones said. “That doesn’t mean that everybody that’s out there gets a ‘get out of jail free’ card if they simply declare themselves a candidate for president or anything else.”

New from CJR: Against ‘poor’ reporting

The mini news cycle launched by Maddow’s scoop died down pretty quickly. But it played into a much longer-running story line: whether Garland’s Justice Department will investigate, or is investigating, Trump for possible crimes on and around January 6, and if so, whether and when prosecutors might indict him. An attendant debate as to whether Trump should be indicted has played out on the editorial and opinion pages, with many commentators arguing that the rule of law demands it while others (often on the right) have argued—when they’ve accepted the case against him at all—that prosecuting a former president would further fray America’s national fabric. All this was supercharged, last month, when the House January 6 committee started holding televised hearings laying out a damning case against Trump, with news coverage dwelling on the committee’s plans (or not) to issue a formal criminal referral, and the extent (or not) of its cooperation with the Justice Department. In late June, the New York Times reported that department prosecutors felt “blindsided” by Cassidy Hutchinson’s bombshell testimony before the committee, spinning the news cycle some more. In TV interviews, committee members leveled thinly veiled criticisms of the rigor of the Justice Department’s probe. “I was surprised that the prosecutors were surprised,” Rep. Zoe Lofgren told Chuck Todd on Meet the Press. “What are they doing over there?”

As the weeks went by, prominent legal pundits suggested—or outright said—that Garland is moving too cautiously with regard to Trump; in a widely discussed Times op-ed, for instance, Andrew Weissmann, who worked on the Mueller probe, declared that the Justice Department’s “classic ‘bottom up’” approach to January 6 (prosecute the rioters first, then follow the evidence up the chain) has been “wrong,” and that prosecutors should instead be applying a “hub and spoke” framework, with the insurrection forming just one of the spokes. This has all fed into a narrative, including on the news pages, that Garland is under pressure—a narrative that has itself, of course, further increased the pressure on Garland. It has also dripped through into the wider culture. “You’re just now getting around to discussing Trump?” Seth Meyers quipped on his late-night show last week. “You’re six years late. Did you also just start watching Fleabag?”

Through all this, however, it remained unclear just how accurate this narrative actually was: the Justice Department had, of course, not yet indicted Trump, but subtler signs pointed to prosecutors moving ahead along various “spokes,” and there was clearly much more beneath the surface that we simply didn’t know. Last week, Garland appeared at a press conference and was asked why he had “rejected” “alternative” approaches to the January 6 probe, including the hub-and-spoke framework. “There are a number of assumptions in this leading question,” Garland replied, showing a flash of irritation. “There is a lot of speculation about what the Justice Department is doing, what it’s not doing, what our theories are, what our theories aren’t—and there will continue to be that speculation. That’s because a central tenet of the way the Justice Department investigates—a central tenet of the rule of law—is that we do not do our investigations in public.” No one, he went on to insist, is above the law.

Sign up for CJR's daily email

Since then, reporters at several major news organizations have offered more clues as to what the Justice Department’s probe might actually look like. On Friday, an ABC News camera observed Marc Short, the chief of staff to Vice President Mike Pence, leaving a DC courthouse, leading ABC to report on Monday that he had testified before a January 6 grand jury—the highest-ranking Trump White House official known to have done so thus far. The same day, the Wall Street Journal added that Greg Jacob, Pence’s legal counsel, had testified, too. On Monday evening, Short went on CNN. He declined to offer many details, but he did confirm his appearance (and, separately, savagely burned Rep. Matt Gaetz), so the interview was worth it.

Then, last night, twin developments. In the early evening, Lester Holt landed a sit-down interview with Garland on NBC’s Nightly News: Holt asked whether Garland was considering national unity as a factor in whether to prosecute Trump; Garland replied that he intends to hold everyone who was criminally responsible for January 6 accountable, before insisting that any Trump 2024 candidacy would make no difference to the probe. Then the Post dropped an apparent bombshell, confirming for the first time, based on four anonymous sources, that the Justice Department is actively investigating Trump’s actions. The Post also reported that prosecutors obtained records belonging to Mark Meadows, Trump’s White House chief of staff, back in April—an indicator, the paper said, of “how expansive the Jan. 6 probe had become well before the high-profile, televised House hearings in June and July on the subject.”

The Post’s story, in particular, drove the news cycle all night long, with pundits and cable news hosts hailing it as a huge development. On MSNBC, Stephanie Ruhle suggested that many observers may have underestimated the Justice Department’s quiet progress in recent weeks. (“I think we’re just not used to an administration that doesn’t leak so much,” she said.) Her colleague Lawrence O’Donnell interviewed Carol D. Leonnig, the lead byline on the Post story. “It’s often said that the Washington Post has been publishing the first draft of history,” he said. “Did you feel you were holding history in your hands as you turned in this story?”

Not that caveats and uncertainties didn’t remain. When O’Donnell put it to Leonnig that the Post had just “jumbled” the perception of many observers that the January 6 committee has been running ahead of the Justice Department, Leonnig offered a nuanced answer, noting that the committee is “loads and loads” ahead when it comes to the gathering of evidence and testimony, and that the committee’s public performance has piled pressure on prosecutors. And the Post’s story, while highly rigorous and careful in its execution, in some ways poses more questions than it answers. Arguably, in fact, it’s the carefulness that invites the questions.

This latest Trump-investigation news cycle can perhaps be seen as a spectrum, ranging from more or less pure speculation about the Justice Department’s movements, on one end, through reported breadcrumbs that are more helpful but ultimately just that—crumbs—toward bigger scoops (like the Post’s) that still invite questions, and ending with the broader debate about what the Justice Department should be doing that has often been rich and thought-provoking, and that doesn’t always depend on concrete knowledge of prosecutors’ actual actions.

Last week, before the Post’s story came out, Lawfare published a particularly engaging version of that debate, with different staffers at the site arguing for and against the proposition that the Justice Department is currently meeting the moment. Benjamin Wittes, Lawfare’s editor in chief, defended the department, arguing that the perception that it’s been dragging its feet when it comes to Trump is “likely wrong,” and that—even if it isn’t—it’s at the very least too soon to say. Quinta Jurecic and Natalie K. Orpett, arguing against Wittes, acknowledged that Wittes had the easier case to make due to the “ambiguity” of the Justice Department’s actions to that point. Now that we know a little more about those actions, Wittes’s argument would seem to be aging pretty well.

Still, Jurecic and Orpett raised an important point that speaks to the entire news cycle here, and the confusion around it. Garland said last week that not conducting investigations in public is a central tenet of Justice Department policy—but that policy, Jurecic and Orpett noted, allows for officials to at least comment on ongoing probes “when the issue under investigation has already received a lot of publicity, or where the community needs to be reassured that the Department is investigating the incident.” Both these criteria apply here (depending on your definition of “community,” at any rate). A little more transparency—from officials, and not just via leaks to the press—might go a long way. Garland’s NBC interview was a start, but he could do more. As Jurecic and Orpett write, it’s “reasonable at this point for the public to be frustrated by, and for journalists and commentators to start pushing on, the Justice Department’s continuing silence.”

Below, more on the January 6 investigation:

  • Source-watch: In a Twitter thread last night, Wittes called the Post’s scoop “a really meaty story packed with a lot of new stuff” that “other reporters will be chasing and building on for the next several days.” He also speculated as to who the paper’s sources might have been, concluding that they likely work as lawyers for Short and Jacob, the two Penceworld grand-jury witnesses. “It is a crime for prosecutors or FBI agents to disclose what Pence aides were asked by prosecutors,” Wittes wrote. “It is perfectly legal for the aides or their lawyers to talk about it. Assume the leak is from witnesses.”
  • Garland’s memo: After Maddow aired Garland’s memo on election-year investigations last week, Elie Mystal, justice correspondent at The Nation, pushed back on the notion that it was merely standard Justice Department fare, calling it “institutionalist claptrap” that suggests excessive caution on Garland’s part. “Garland is like a referee who is so concerned about the appearance of bias toward one team or the other that he swallows his whistle and refuses to call a foul or a penalty,” Mystal wrote. “He thinks he’s being impartial, but he’s actually just helping the team that doesn’t play by the rules.”
  • Murdoch mania: As I noted in yesterday’s newsletter, a wave of recent media coverage generated by two Murdoch newspapers, the Journal and the New York Post, seeming to turn on Trump has been tempered by critics who have argued, variously, that the titles’ stance is neither all that surprising nor all that significant, given that top Fox opinion hosts are still in Trump’s corner. In an op-ed titled “Wake me up when Sean Hannity editorializes against Trump,” the Washington Post’s Erik Wemple joined the pushback. “Under the ineffable laws of media distribution,” he wrote, the two Murdoch papers can “write editorials zinging Trump without causing much, if any, harm to their respective business models. The same doesn’t hold true for the opinion hours on Fox News.”

Other notable stories:

ICYMI: A big step backward for Tunisia’s press

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.

TOP IMAGE: Attorney General Merrick Garland. Oliver Contreras/Pool via AP