The emails themselves look like the stuff that normally gets routed to your spam folder: wild conspiracy theories about election fraud, absurd suggestions on strategy to overturn the already-completed and certified election, desperate entreaties from unhinged fantasists dreaming of flipping the election’s outcome. But these were not junk emails from some trolls — they were sent from the top echelons of power in the White House to the Justice Department, in a genuine effort to overturn an American election.
Thankfully, the Justice Department declined to act upon the ravings of Trump’s advisers, to the credit of then-acting Attorney General Jeffrey Rosen (who had taken over after Barr’s departure in December 2020) and other top brass.
The emailed reactions of officials within the department appropriately reflect a sense of incredulity and dismay at the efforts of Trump’s staffers to get them on board with trying to overturn a democratic election. In one internal Justice Department email, Rosen asks “Can you believe this?” and in another, a top department adviser characterized the White House’s outreach as “pure insanity.”
“Pure insanity,” indeed. But it’s worse than that, really. In one respect, the White House acted from a sense of delusion, both about the actual outcome of the 2020 election and about its chances to reverse it.
But in a more sinister sense, Trump and his top advisers acted purposefully and deliberately. Their efforts to steal an election and undercut democracy are as clear as the words on the page. And as the efforts of Trump and his followers to continue spreading the Big Lie continue and intensify, we need to remember just how close Trump and his enablers came to succeeding the first time.
Now, your questions:
Robert (Arizona): Has the new Justice Department shown any willingness to revisit the policy against formally charging a sitting president with a crime?
The policy at issue is strictly of the Justice Department’s own making; it is not encoded in any statute or Supreme Court decision. Therefore, the Justice Department is free to revisit and perhaps revise the policy, if it so chooses. To date, however, neither Attorney General Merrick Garland nor any of his top brass have given any public indication that they intend to reexamine the no-indictment policy.
Greg (Canada): If Congress doesn’t act, does the attorney general have the authority to set up a commission to investigate the January 6 Capitol insurrection?
A commission, however, would likely be tasked with a broader mission to investigate and report on the Capitol insurrection, beyond criminal charges. While the attorney general theoretically could appoint a team to conduct such an investigation, that would not fall comfortably within the Justice Department’s typical function of investigating and bringing criminal charges (and civil lawsuits).
Also, while the Justice Department certainly holds subpoena power for its criminal investigations, it likely would not have subpoena power for a non-criminal investigative commission. And questions could emerge about the political legitimacy of a Justice Department investigation conducted without the authorization or support of Congress.