After a Wave of Subpoenas, Notes of Caution About the Jan. 6 Investigation
WASHINGTON — From outside the walls of the Justice Department, the sprawling investigation into efforts to reverse the outcome of the 2020 election seems only to be accelerating, with prosecutors last week subpoenaing about 40 associates of former President Donald J. Trump and seizing phones from at least two of his aides.
But that flurry of activity should not be mistaken for a signal that Mr. Trump will imminently be prosecuted for his attempts to remain in office or the impact that those actions had on the Jan. 6, 2021, attack on the Capitol, according to two people familiar with the investigation. They noted that prosecutors are still going through evidence and are far from determining whether any charges could be brought against the former president.
The notes of caution appear to reflect the complexity of the investigation, the methodical pace at which the Justice Department conducts its work and the politically explosive nature of an inquiry involving a former president and likely presidential candidate.
They also stand in contrast to signals emanating from the narrower investigation into Mr. Trump’s handling of government records and sensitive intelligence information, including possible obstruction charges.
In a search warrant application and in court filings in the documents case, a team of prosecutors in the Justice Department’s National Security Division has laid out evidence that Mr. Trump not only left the White House with thousands of pages of sensitive materials, but that he tried to prevent the government from retrieving them from Mar-a-Lago, his Florida home and private club.
The evidence laid out by the department in the documents matter has been sufficiently extensive that even some prominent figures from Republican administrations like William P. Barr, who served as attorney general under Mr. Trump, and John Yoo, a top Justice Department official under President George W. Bush, have publicly said that Mr. Trump likely obstructed justice.
The documents case is now caught up in a legal fight between Mr. Trump and the Justice Department over whether and how an independent arbiter, known as a special master, will review documents seized by F.B.I. agents during the court-authorized search of Mar-a-Lago on Aug. 8.
Despite that legal hurdle, and the weeks of investigative work still to be done, the department could consider potential charges against Mr. Trump much sooner in the documents case than in the Jan. 6 investigation, the people familiar with the inquiries said.
Even if the recent spate of subpoenas yields compelling information that advances the Jan. 6 investigation, it is unlikely that Attorney General Merrick B. Garland would be in a position to weigh criminal charges against Mr. Trump in either the Jan. 6-related inquiry or in the documents investigation before the midterm elections. With one case tied up in the courts and investigators still gathering and evaluating large amounts of information in the other, such a decision might not even happen this year.
The Justice Department declined to comment.
In the documents case, prosecutors have articulated in their court filings a clear theory of which laws the former president may have broken.
Key Revelations From the Jan. 6 Hearings
Making a case against Trump. The House committee investigating the Jan. 6 attack is laying out a comprehensive narrative of President Donald J. Trump’s efforts to overturn the 2020 election. Here are the main themes that have emerged so far from eight public hearings:
An unsettling narrative. During the first hearing, the committee described in vivid detail what it characterized as an attempted coup orchestrated by the former president that culminated in the assault on the Capitol. At the heart of the gripping story were three main players: Mr. Trump, the Proud Boys and a Capitol Police officer.
Creating election lies. In its second hearing, the panel showed how Mr. Trump ignored aides and advisers as he declared victory prematurely and relentlessly pressed claims of fraud he was told were wrong. “He’s become detached from reality if he really believes this stuff,” William P. Barr, the former attorney general, said of Mr. Trump during a videotaped interview.
Pressuring Pence. Mr. Trump continued pressuring Vice President Mike Pence to go along with a plan to overturn his loss even after he was told it was illegal, according to testimony laid out by the panel during the third hearing. The committee showed how Mr. Trump’s actions led his supporters to storm the Capitol, sending Mr. Pence fleeing for his life.
Fake elector plan. The committee used its fourth hearing to detail how Mr. Trump was personally involved in a scheme to put forward fake electors. The panel also presented fresh details on how the former president leaned on state officials to invalidate his defeat, opening them up to violent threats when they refused.
Strong arming the Justice Dept. During the fifth hearing, the panel explored Mr. Trump’s wide-ranging and relentless scheme to misuse the Justice Department to keep himself in power. The panel also presented evidence that at least half a dozen Republican members of Congress sought pre-emptive pardons.
The surprise hearing. Cassidy Hutchinson, a former White House aide, delivered explosive testimony during the panel’s sixth session, saying that the president knew the crowd on Jan. 6 was armed, but wanted to loosen security. She also painted Mark Meadows, the White House chief of staff, as disengaged and unwilling to act as rioters approached the Capitol.
Planning a march. Mr. Trump planned to lead a march to the Capitol on Jan. 6 but wanted it to look spontaneous, the committee revealed during its seventh hearing. Representative Liz Cheney also said that Mr. Trump had reached out to a witness in the panel’s investigation, and that the committee had informed the Justice Department of the approach.
A “complete dereliction” of duty. In the final public hearing of the summer, the panel accused the former president of dereliction of duty for failing to act to stop the Capitol assault. The committee documented how, over 187 minutes, Mr. Trump had ignored pleas to call off the mob and then refused to say the election was over even a day after the attack.
The government has raised the possibility that Mr. Trump violated the Espionage Act by bringing sensitive national security information to his private club after he left the White House. It said he may have violated a law that prohibits the mishandling of sensitive national security records, some of which were discovered in an unsecured storage room. And it asserted that he may have obstructed the federal investigation, with one of his own lawyers having certified in June that all the documents the government was seeking had been returned when they had not been.
The documents investigation seemed to be moving apace in early August, when the Justice Department seized thousands of pages of presidential records from Mr. Trump’s home, including additional batches of materials that were marked as highly classified. A redacted version of the government’s affidavit said it had probable cause to believe that it would find “evidence of obstruction” at Mar-a-Lago.
But Judge Aileen M. Cannon, a federal judge in Florida, put the investigation into a holding pattern this month when she granted Mr. Trump’s request for a special master to review the recently seized materials. The court must now settle key issues, including who will serve as the special master and whether the F.B.I. and other intelligence agencies can review 103 key documents for potential harm to national security while that arbiter completes his or her work.
While the Justice Department indicated its openness to one of Mr. Trump’s picks to serve as the special master, it appears ready to proceed with an appeal of Judge Cannon’s ruling, a step that could lead to continued delays and potentially slow the investigation even more.
On Tuesday, the Justice Department pushed back against a Trump legal team filing that reiterated the former president’s view that the special master’s review should include about 100 documents marked as classified, meaning F.B.I. agents and prosecutors could not use them for any criminal investigative purpose until the master’s work is complete.
The Justice Department has asked Judge Cannon to keep the documents with classification markings from the special master so investigation into them can continue, in part because it argued that a separate review of any risk to national security was inextricably entangled in the F.B.I.’s inquiry.
Even without the special master dispute, the department has further investigative steps to complete in the documents case. It may need to determine whether Mr. Trump still has government records, which the National Archives told Congress this week is a possibility.
The department has said it wishes to interview more witnesses. And it will need to decide how to handle Trump lawyers who may have misled or lied to prosecutors. The intelligence community has yet to complete its review of the national security risks of Mr. Trump keeping highly classified documents in a setting without proper security. And it is not clear why Mr. Trump kept the documents.
If prosecutors eventually decide to recommend prosecuting Mr. Trump in the documents case, Mr. Garland would then need to decide whether to follow that recommendation.
But if the documents case appears on track to reach a decision point about prosecution, the Jan. 6 inquiry does not yet have that end point in sight.
The recent wave of subpoenas seems intended to gather more information about multiple investigative strands related to Mr. Trump’s efforts to remain in power. They include the formation of slates of pro-Trump electors from states won by Joseph R. Biden Jr.; plans to use the rally that preceded the assault on the Capitol to keep Congress from certifying Mr. Biden’s Electoral College victory; and the activities of the fund-raising vehicle that Mr. Trump has relied on to pay his legal bills since leaving office.
The new information could help investigators in the U.S. attorney’s office in Washington determine where these strands might overlap and, significantly, “whether Trump or others are the connective tissue that joins these groups,” said Barbara McQuade, a former federal prosecutor and law professor at the University of Michigan.
That is not to say that prosecutors are not nearing Mr. Trump’s inner circle. They have charged several people with seditious conspiracy, including members of a far-right extremist group that provided security for Trump associates on the day of the Jan. 6 rally. They are scrutinizing Jeffrey Clark, a Justice Department official, for his efforts to help Mr. Trump promote the lie that the election had been riddled with fraud, and John Eastman, a lawyer who was one of the biggest proponents of the plan to put forth slates of Trump electors from swing states won by Mr. Biden.
But as of now, the subpoenas issued in the Jan. 6 investigation appear not to cite crimes that might have arisen from the push to change the election’s outcome or to identify Mr. Trump — who has repeatedly cast the inquiry as politically motivated and without merit — as a possible defendant.
Charlie Savage contributed reporting.