WASHINGTON -- Lawmakers investigating the Jan. 6, 2021, attack on the U.S. Capitol are increasingly going public with critical statements, court filings and more to deliver a message to Attorney General Merrick Garland and the Department of Justice.
The attorney general's deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Joe Biden himself. As recently as late last year, Biden confided to his inner circle that he believed former President Donald Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Garland, he has said privately that he wanted Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.
Garland has given no public indication about whether prosecutors might be considering a case against the former president. He has, though, vowed to hold accountable "all January 6th perpetrators, at any level" and has said that would include those who were "present that day or were otherwise criminally responsible for the assault on our democracy."
Speaking to reporters Friday, Garland said that he and the career prosecutors working on the case felt only the pressure "to do the right thing," which meant that they "follow the facts and the law wherever they may lead."
Still, Democrats' increasingly urgent calls for the Justice Department to take more aggressive action highlight the tension between the frenetic demands of politics and the methodical pace of one of the biggest prosecutions in the department's history.
"The Department of Justice must move swiftly," Rep. Elaine Luria, D-Va., a member of the House committee investigating the riot, said last week. She and others on the panel want the department to charge Trump allies with contempt for refusing to comply with the committee's subpoenas.
"Attorney General Garland," Luria said during a committee hearing, "do your job so that we can do ours."
"We are upholding our responsibility. The Department of Justice must do the same," echoed Rep. Adam Schiff, D-Calif.
While the majority of committee members have turned up the pressure on Garland, one member, Democratic Rep. Jamie Raskin of Maryland, has not gone as far.
"I feel strongly that we restore the tradition of respect for the independence of the law enforcement function," Raskin told reporters last week. "That was one of the things that got trashed during the Trump period. And so I think that Congress and the president should let the Department of Justice and attorney general do their job."
"Attorney General Garland is my constituent," Raskin added, "and I don't beat up on my constituents."
In a statement, Andrew Bates, a White House spokesperson, said the president believed that Garland had "decisively restored" the independence of the Justice Department.
"President Biden is immensely proud of the attorney general's service in this administration and has no role in investigative priorities or decisions," Bates said.
A Justice Department spokesperson declined to comment.
Both Garland and Biden took office promising to restore the independence and reputation of the Justice Department.
For Biden, keeping that promise means inviting the ire of supporters who say they will hold the president to the remarks he made on the anniversary of the assault on the Capitol, when he vowed to make sure "the past isn't buried" and said that the people who planned the siege "held a dagger at the throat of America."
When it comes to Jan. 6, Justice Department officials emphasize that their investigation has produced more than 775 arrests and a charge of seditious conspiracy against the leader of a far-right militia. More than 280 people have been charged with obstructing Congress' duty to certify the election results.
And federal prosecutors have widened the investigation to include a broad range of figures associated with Trump's attempts to cling to power. According to people familiar with the inquiry, it now encompasses planning for pro-Trump rallies before the riot and the push by some Trump allies to promote slates of fake electors.
The Justice Department has given no public indication about its timeline or whether prosecutors might be considering a case against Trump.
JUDGE'S OPINION
Last week, a federal judge in California -- District Judge David Carter, a Bill Clinton appointee -- wrote that it is "more likely than not" that Trump himself committed crimes in his attempt to stop the certification of the 2020 election.
The practical effect of that ruling was to order the release of more than 100 emails from Trump adviser John Eastman to the Jan. 6 committee. But lawmakers zeroed in on a particular passage in the judge's opinion that characterized Jan. 6 as a "coup."
"Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower -- it was a coup in search of a legal theory," Carter wrote.
But experts caution that Carter's opinion was only in a civil case and does not meet the long-standing charging policy the Justice Department is required to meet. Justin Danilewitz, a Philadelphia-based attorney and former federal prosecutor, noted the department faces a higher burden of proof in court to show that presidential immunity should not apply. And he said the legal advice Trump received from Eastman "undermines an inference of corrupt or deceitful intent."
The department will be guided by the evidence and law, he said, "but the social and political ramifications of a decision of this kind will not be far from the minds of Attorney General Garland and his staff."
"A decision to bring or not bring criminal charges will have significant ripple effects," he added.
Taylor Budowich, a Trump spokesperson, called the judge's ruling an "absurd and baseless ruling by a Clinton-appointed Judge in California." He called the House committee's investigation a "circus of partisanship."
The House committee investigating the Jan. 6 attack can send criminal referrals to the Justice Department, but only the department can bring charges. The panel is working with a sense of urgency to build its case before this year's midterm elections, when Republicans could retake the House and dissolve the committee.
Garland has not changed his approach to criminal prosecutions in order to placate his critics, according to several Justice Department officials who have discussed the matter with him. He is regularly briefed on the Jan. 6 investigation, but he has remained reticent in public.
"The best way to undermine an investigation is to say things out of court," Garland said Friday.
Even in private, he relies on a stock phrase: "Rule of law," he says, "means there not be one rule for friends and another for foes."
Despite Biden's private frustrations with the attorney general, several people who speak regularly to the president said he had praised Garland as among the most thoughtful, moral and intelligent people he had dealt with in his career.
The two men did not know each other well when Biden selected him for the job. Garland had a closer relationship with Ron Klain, Biden's chief of staff, than he did with the incoming president.
Officials inside the White House and the Justice Department acknowledge that the two men have less contact than some previous presidents and attorneys general, particularly Trump and his last attorney general, William Barr.
Some officials see their limited interactions as an overcorrection on the part of Garland and argue that he does not need to color so scrupulously within the lines. But it may be the only logical position for Garland to take, particularly given that both of Biden's children are involved in active investigations by the Justice Department.
The distance between the two men is a sharp departure from the previous administration, when Trump would often call Barr to complain about decisions related to his political allies and enemies.
Federal prosecutors would have no room for error in building a criminal case against Trump, experts say, given the high burden of proof they must meet and the likelihood of any decision being appealed.
In October, Biden told reporters that he thought those who defied subpoenas from the House committee investigating the Jan. 6 attack should be prosecuted.
"I hope that the committee goes after them and holds them accountable criminally," Biden said. When asked whether the Justice Department should prosecute them, he replied, "I do, yes."
The president's words prompted a swift statement from the agency: "The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop."
Information for this article was contributed by Katie Benner, Katie Rogers and Michael S. Schmidt of The New York Times and by Farnoush Amiri and Michael Balsamo of The Associated Press.