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      Why the Jan. 6 Investigation Is a Test for Biden and Merrick Garland

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      WASHINGTON — Immediately after Merrick B. Garland was sworn in as attorney general in March of last year, he summoned top Justice Department officials and the F.B.I. director to his office. He wanted a detailed briefing on the case that will, in all likelihood, come to define his legacy: the Jan. 6 assault on the Capitol.Even though hundreds of people had already been charged, Mr. Garland asked to go over the indictments in detail, according to two people familiar with the meeting. What were the charges? What evidence did they have? How had they built such a sprawling investigation, involving all 50 states, so fast? What was the plan now?The attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. 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 Mr. Garland, he has said privately that he wanted Mr. 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.Speaking to reporters on Friday, Mr. 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,” Representative Elaine Luria, Democrat of Virginia and a member of the House committee investigating the riot, said this past 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,” Ms. Luria said during a committee hearing, “do your job so that we can do ours.”This article is based on interviews with more than a dozen people, including officials in the Biden administration and people with knowledge of the president’s thinking, all of whom asked for anonymity to discuss private conversations.In a statement, Andrew Bates, a White House spokesman, said the president believed that Mr. 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,” Mr. Bates said.A Justice Department spokesman declined to comment.The Jan. 6 investigation is a test not just for Mr. Garland, but for Mr. Biden as well. Both men came into office promising to restore the independence and reputation of a Justice Department that Mr. Trump had tried to weaponize for political gain.For Mr. 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.”President Biden and Mr. Garland are managing a relationship between the White House and the Justice Department unlike any other in American history. Doug Mills/The New York TimesComplicating matters for Mr. Biden is the fact that his two children are entangled in federal investigations, making it all the more important that he stay out of the Justice Department’s affairs or risk being seen as interfering for his own family’s gain.The department is investigating whether Ashley Biden was the victim of pro-Trump political operatives who obtained her diary at a critical moment in the 2020 presidential campaign, and Hunter Biden is under federal investigation for tax avoidance and his international business dealings. Hunter Biden has not been charged with a crime and has said he handled his affairs appropriately.Justice Department officials do not keep Mr. Biden abreast of any investigation, including those involving his children, several people familiar with the situation said. The cases involving Hunter Biden and Ashley Biden are worked on by career officials, and people close to the president, including Dana Remus, the White House counsel, have no visibility into them, those people said.Still, the situation crystallizes the delicate ground that Mr. Biden and Mr. Garland are navigating.When it comes to Jan. 6, Justice Department officials emphasize that their investigation has produced substantial results already, including 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’s duty to certify the election results.And federal prosecutors have widened the investigation to include a broad range of figures associated with Mr. Trump’s attempts to cling to power. According to people familiar with the inquiry, it now encompasses planning for pro-Trump rallies ahead of the riot and the push by some Trump allies to promote slates of fake electors.The Justice Department’s Jan. 6 inquiry has led to more than 775 arrests. More than 280 people have been charged with obstructing Congress’s duty to certify the election results.Erin Schaff/The New York TimesThe Justice Department has given no public indication about its timeline or whether prosecutors might be considering a case against Mr. Trump.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 ahead of this year’s midterm elections, when Republicans could retake the House and dissolve the committee.Mr. Biden, a longtime creature of the Senate, is aghast that people close to Mr. Trump have defied congressional subpoenas and has told people close to him that he does not understand how they think they can do so, according to two people familiar with his thinking.Mr. 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,” Mr. Garland said on 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.”He did seem to acknowledge Democrats’ frustrations in a speech in January, when he reiterated that the department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.”Quiet and reserved, Mr. Garland is well known for the job he was denied: a seat on the Supreme Court. President Barack Obama nominated him in March 2016 after the death of Justice Antonin Scalia, but Senate Republicans blockaded the nomination.Mr. Garland’s peers regard him as a formidable legal mind and a political centrist. After graduating from Harvard Law School, he clerked for a federal appeals court judge and Justice William J. Brennan Jr. of the Supreme Court before becoming a top official in the Justice Department under Attorney General Janet Reno. There, he prosecuted domestic terrorism cases and supervised the federal investigation into the Oklahoma City bombing.His critics say that his subsequent years as an appeals court judge made him slow and overly deliberative. But his defenders say that he has always carefully considered legal issues, particularly if the stakes were very high — a trait that most likely helped the Justice Department secure a conviction against Timothy J. McVeigh two years after the Oklahoma City attack.During the presidential transition after the 2020 election, Mr. Biden took his time mulling over candidates to be attorney general, according to a senior member of the transition team. He had promised the American people that he would reestablish the department as an independent arbiter within the government, not the president’s partisan brawler.Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 4Justice Department widens inquiry. More

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      Justice Dept. Widens Jan. 6 Inquiry to More Pro-Trump Figures

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      Federal prosecutors have been seeking documents and testimony about the fake electors scheme and the planning for the rally just before the storming of the Capitol.Federal prosecutors have substantially widened their Jan. 6 investigation to examine the possible culpability of a broad range of figures involved in former President Donald J. Trump’s efforts to overturn the results of the 2020 election, people familiar with the inquiry said on Wednesday.The investigation now encompasses the possible involvement of other government officials in Mr. Trump’s attempts to obstruct the certification of President Biden’s Electoral College victory and the push by some Trump allies to promote slates of fake electors, they said.Prosecutors are also asking about planning for the rallies that preceded the assault on the Capitol, including the rally on the Ellipse on Jan. 6 of last year, just before a pro-Trump mob stormed the Capitol.The federal investigation initially focused largely on the rioters who had entered the Capitol, an effort that has led to more than 700 arrests. But the Justice Department appears to have moved into a new phase, seeking information about people more closely tied to Mr. Trump. This development comes amid growing political pressure on Attorney General Merrick B. Garland to move more aggressively on the case.A grand jury sitting in Washington is investigating the rallies that preceded the storming of the Capitol, a person familiar with the matter said.One of the subpoenas, which was reviewed by The New York Times, sought information about people “classified as VIP attendees” at Mr. Trump’s Jan. 6 rally.It also sought information about members of the executive and legislative branches who had been involved in the “planning or execution of any rally or any attempt to obstruct, influence, impede or delay” the certification of the 2020 election.And it asked about the effort by Trump supporters to put forward alternate slates of electors as Mr. Trump and his allies were seeking to challenge the certification of the Electoral College outcome by Congress on Jan. 6.Another person briefed on the grand jury investigation said at least one person involved in the logistics of the Jan. 6 rally had been asked to appear.In pursuing Jan. 6 cases, prosecutors have been assembling evidence documenting how defendants have cited statements from Mr. Trump to explain why they stormed the Capitol. And prosecutors have cited in some cases a Twitter post from Mr. Trump weeks before Jan. 6 exhorting his followers to come to Washington, a call that motivated extremist groups in particular.The expanded criminal inquiry is unfolding as a separate investigation by the House select committee on the Capitol riot is gathering evidence about Mr. Trump’s efforts to hold onto power and weighing the possibility of making a criminal referral of Mr. Trump to the Justice Department.On Monday, a federal judge in California, in a civil case involving the House committee, concluded that Mr. Trump likely engaged in criminal conduct, including obstructing the work of Congress and conspiring to defraud the United States.Mr. Garland has given little public indication of whether the Justice Department would consider prosecuting Mr. Trump, saying only that the department will follow the facts wherever they lead.But the expanded inquiry, elements of which were reported earlier by the Washington Post, suggests that prosecutors are pursuing a number of lines of inquiry. Those include any connections between the attack on the Capitol and the organizers and prominent participants in the rally on the Ellipse, and potential criminality in the promotion of pro-Trump slates of electors to replace slates named by states won by Mr. Biden.The Justice Department previously said it was looking into the slates of electors that had falsely declared Mr. Trump the victor in seven swing states won by Mr. Biden.Even as election officials in the seven contested states sent official lists of electors who had voted for Mr. Biden to the Electoral College, the fake slates claimed Mr. Trump was the winner in an apparent bid to subvert the election outcome.Lawmakers, state officials and the House committee investigating the Jan. 6 riot had asked the Justice Department to look into the role played by those fake electors and the documents they submitted to the National Archives on Dec. 14, 2020. The grand jury subpoenas suggest that prosecutors are seeking to gather evidence of whether submitting the documents to a federal agency amounted to a crime.Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 4Jan. 6 call logs. More

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      Ruling Declaring Trump ‘Likely’ Broke Laws May Not Mean He’ll Be Prosecuted

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      A high-profile ruling about a subpoena from the House committee investigating the Jan. 6 attack turned on a lower standard of proof than a criminal trial.WASHINGTON — A federal judge’s conclusion this week that former President Donald J. Trump likely committed felonies related to his efforts to overturn the results of the 2020 election intensified scrutiny on the question of whether the Justice Department can, should or will try to charge him with the same crimes.But the fact that a judge reached that conclusion does not necessarily mean that a prosecution would arrive at the same outcome. Here is an explanation.What is the case?It is a dispute over a subpoena issued by the House committee that is investigating the Jan. 6, 2021, attack on the Capitol by Trump supporters who were seeking to stop Congress and the vice president at the time, Mike Pence, from certifying Joseph R. Biden Jr.’s Electoral College victory.The subpoena instructs Chapman University to turn over emails from a former professor, John Eastman, who supplied legal arguments to Mr. Trump supporting his attempts to overturn the election. Mr. Eastman filed a lawsuit to block the subpoena, arguing that his messages were covered by attorney-client and attorney work-product privilege.What did the judge say?In his ruling, Judge David O. Carter of the Federal District Court for the Central District of California said the Jan. 6 committee could get certain emails under an exception to attorney-client privilege for communications that sought to further a crime or fraud because it was “more likely than not” that Mr. Trump unlawfully sought to obstruct a government proceeding.What is the theory that Mr. Trump committed crimes?Mr. Trump, in public and in private, pressured Mr. Pence to reject or delay counting the Electoral College votes of states where Mr. Trump baselessly claimed that his loss to Mr. Biden had been fraudulent. The idea is that there was no legitimate basis for Mr. Pence to do so, so Mr. Trump’s pressure on him amounted to an attempt to unlawfully obstruct a government proceeding and defraud the government.The evidence that Mr. Trump pressured Mr. Pence has been well established. The judge issued his ruling interpreting that evidence as likely amounting to a crime at this moment not because of a breakthrough in the investigation that uncovered new, conclusive evidence, but because of the timing of the subpoena lawsuit: The Jan. 6 committee needed to publicly argue that the crime-fraud exception applied so it could obtain Mr. Eastman’s emails, and the judge agreed.Is the ruling a road map for an indictment?Not necessarily, because the context is very different. As Judge Carter noted: “The court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit.”What is a big challenge to prosecuting Mr. Trump?Proving Mr. Trump’s state of mind — specifically, that he had the requisite criminal intent.The obstruction statute, for example, says that for the defendant’s action impeding an official proceeding to be a crime, he had to act “corruptly.” But what that means is not detailed in the statute, and the Supreme Court has not definitively offered an answer, raising risks and complications for prosecutors evaluating a potential case.One possibility, said Laurie L. Levenson, a criminal law professor at Loyola Law School in Los Angeles, is that prosecutors would have to prove that Mr. Trump knew for sure that Mr. Pence had no lawful basis to do what he was asking. Another possibility is that prosecutors would need to prove only that Mr. Trump had at least some reason to believe that his conduct might be unlawful and proceeded anyway, she said.Why is proving Mr. Trump’s mind-set tricky?Because even though senior government officials were telling him there was no factual or legal basis for Mr. Pence to unilaterally reject some states’ electoral votes or otherwise slow down the certification, Mr. Eastman told Mr. Trump that he interpreted the law as giving Mr. Pence legitimate authority to take such a step.Julie O’Sullivan, a Georgetown University criminal law professor, said in any criminal trial, it would ultimately be up to the jury to decide what Mr. Trump truly believed. Unless evidence emerges that he told someone at the time that he knew what he was saying was false, she said, that will be a challenge.“The problem with Trump is defining his state of mind when it is so changeable,” she said. “He believes whatever he wants to think and it doesn’t necessarily have to be grounded in reality. That’s a tough argument to a jury, to say he knew any particular thing.”Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 4Trump’s tweet. More

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      Nebraska Congressman Convicted in Campaign Finance Case

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      Representative Jeff Fortenberry was accused of lying to F.B.I. agents investigating illegal foreign donations.LOS ANGELES — A Nebraska congressman was convicted Thursday on charges that he lied to federal authorities about having received an illegal campaign contribution from a foreign citizen.Representative Jeff Fortenberry was convicted in federal court in Los Angeles on one count of falsifying and concealing material facts and two counts of making false statements. Each carries a maximum sentence of five years in prison, according to the United States Department of Justice. A sentencing hearing was set for June 28.“The lies in this case threatened the integrity of the American electoral system and were designed to prevent investigators from learning the true source of campaign funds,” said Tracy L. Wilkison, one of the prosecutors.Mr. Fortenberry’s office did not immediately respond to a request for comment. But outside the courthouse, Mr. Fortenberry said that the process had been unfair and that he would appeal immediately, according to The Associated Press.In October, when he was charged, the congressman vowed to fight the accusations and maintained his innocence.“Five and a half years ago, a person from overseas illegally moved money to my campaign,” Mr. Fortenberry said in a video he posted online at the time. “I didn’t know anything about this.”He was convicted after a weeklong trial.Mr. Fortenberry, a Republican who has been in Congress for almost two decades, received a $30,000 donation to his re-election campaign at a fund-raiser in 2016, according to the federal indictment in the case. Foreign citizens are prohibited from donating to U.S. election campaigns.Rather than report the contribution in an amended filing with the Federal Election Commission or return the money, as federal law dictates, prosecutors said Mr. Fortenberry kept it and told investigators in 2019 that he had been unaware of any contributions made by foreign citizens.The charges did not stem from the donation itself, which came from Gilbert Chagoury, a Lebanese Nigerian billionaire who was accused of conspiring to make illegal campaign contributions to American politicians in exchange for access to them.The charges came after prosecutors said Mr. Fortenberry denied knowing that the donation, which had been funneled through an intermediary, were from Mr. Chagoury — even after the congressman told a cooperating witness, a fund-raiser referred to in court filings as Individual H, that the donation “probably did come from Gilbert Chagoury.”Federal investigators first interviewed Mr. Fortenberry in 2019 as part of an investigation into Mr. Chagoury, who admitted to giving $180,000 to four candidates from June 2012 to March 2016. Mr. Fortenberry was one of those four.Mr. Chagoury ultimately reached a deal with the U.S. government and paid a $1.8 million fine.In court documents, prosecutors said Mr. Chagoury had been told to donate to “politicians from less-populous states because the contribution would be more noticeable to the politician and thereby would promote increased donor access.”Katie Benner contributed reporting. More

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      Project Veritas Says Justice Dept. Secretly Seized Its Emails

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      In a court filing, the conservative group assailed prosecutors for concealing the action in a proceeding from the investigation of how it acquired Ashley Biden’s diary.The conservative group Project Veritas said on Tuesday that the Justice Department began secretly seizing a trove of its internal communications in late 2020, just weeks after learning that the group had obtained a copy of President Biden’s daughter’s diary.In a court filing, a lawyer for Project Veritas assailed the Justice Department’s actions, which involved subpoenas, search warrants and court production orders that had not been previously disclosed and gag orders imposed on Microsoft, whose servers housed the group’s emails.The disclosure underscored the scope and intensity of the legal battle surrounding the Justice Department’s investigation into how Project Veritas, in the closing weeks of the 2020 presidential campaign, came into possession of a diary kept by Ashley Biden, the president’s daughter, and other possessions she had stored at a house in Florida.And it highlighted how the Justice Department has resisted demands by the conservative group — which regularly engages in sting operations and ambush interviews against news organizations and liberal groups and has targeted perceived political opponents — to be treated as a news organization entitled to First Amendment protections.It is highly unusual for the Justice Department to obtain the internal communications of journalists, as federal prosecutors are supposed to follow special guidelines to ensure they do not infringe on First Amendment rights.Since the investigation was disclosed last fall, federal prosecutors have repeatedly said that because they have evidence that the group may have committed a crime in obtaining Ms. Biden’s belongings, Project Veritas is not entitled to First Amendment protections.But Project Veritas, in its filing on Tuesday, said that prosecutors had failed to be forthcoming with a federal judge about the nature of their inquiry by choosing not to disclose the secret subpoenas and warrants.“This is a fundamental, intolerable abridgment of the First Amendment by the Department of Justice,” James O’Keefe, the group’s founder and leader, said in a video.In its court filing, Project Veritas asked a federal judge to intervene to stop the Justice Department from using the materials it had obtained from Microsoft in the investigation. The group said that federal prosecutors had obtained “voluminous materials” — which in many cases included the contents of emails — from Microsoft for eight of its employees, including Mr. O’Keefe.The group also disclosed that Uber had told two of its operatives who are under investigation — Spencer Meads and Eric Cochran — that it had handed over information from their accounts in March of last year in response to demands from the government.Microsoft said in response to questions about the matter that it had initially challenged the government’s demands for Project Veritas’s information, but the company declined to describe what that entailed.“We’ve believed for a long time that secrecy should be the exception and used only when truly necessary,” said Frank X. Shaw, a spokesman for Microsoft. “We always push back when the government is seeking the data of an enterprise customer under a secrecy order and always tell the customer as soon as we’re legally able.”According to a person with direct knowledge of the matter, Microsoft had pushed back on the Justice Department’s subpoenas and warrants when the company was served with them in late 2020 and early 2021. But the government refused to drop its demands and Microsoft handed over the information that prosecutors were seeking, the person said.Because of gag orders that had been imposed, Microsoft was barred from telling Project Veritas about the requests, the person said.Shortly after the existence of the investigation was revealed publicly last fall, Microsoft asked the Justice Department whether it could tell Project Veritas about the requests, the person said. The department refused to lift the gag orders, the person said.In response, Microsoft drafted a lawsuit against the Justice Department to try to get the gag orders lifted and told department officials that the company was prepared to file it. Soon afterward, the department went to court and had the gag orders lifted.A little more than a week ago, Microsoft told Project Veritas about the warrants and subpoenas, the person said.Project Veritas paid $40,000 for Ms. Biden’s diary to a man and a woman from Florida who said that it had been obtained from a home where Ms. Biden had been staying until a few months earlier. Project Veritas also had possession of other items left at the house by Ms. Biden, and at the heart of the investigation is whether the group played a role in the removal of those items from the home.Project Veritas has denied any wrongdoing and maintained that Ms. Biden’s belongings had been abandoned. The group never published the diary.Search warrants used in raids last fall on the homes of Mr. O’Keefe and two other Project Veritas operatives showed that the Justice Department was investigating conspiracy to transport stolen property and possession of stolen goods, among other crimes.In response to the searches, a federal judge, at the urging of Project Veritas, appointed a special master to oversee what evidence federal prosecutors could keep from the dozens of cellphones and electronic devices the authorities had obtained.Project Veritas said in its filing on Tuesday that at the time the special master was appointed the government should have revealed that it had conducted other searches that could have infringed on the group’s First Amendment rights or could have been protected by attorney-client privilege.In the final year of the Trump administration, prosecutors in Washington, who were investigating a leak of classified information, secretly obtained court orders demanding that Google, which houses The New York Times’s email accounts, hand over information from four Times reporters’ accounts. In response to requests from Google, the Justice Department allowed it to alert The Times to the demands so the newspaper could fight the orders. A lawyer for The Times, David McCraw, secretly fought the demands, which the government ultimately dropped. More

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      Pressure on Justice Dept. as Jan. 6 Panel Lays Out Case Against Trump

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      Building a criminal case against the former president is very difficult for federal prosecutors, experts say, underlining the dilemma confronting the agency.WASHINGTON — The Justice Department is facing mounting pressure to prosecute former President Donald J. Trump after the House committee investigating the Jan. 6 attack laid out its argument for a potential criminal case on Wednesday night, placing Attorney General Merrick B. Garland squarely in the middle of a politically charged debate over how to hold Mr. Trump accountable for efforts to overturn the election.Even as Democrats have criticized Mr. Garland for remaining silent on Mr. Trump’s actions, he has sought to insulate the agency from politicization, an effort he sees as a corrective to Mr. Trump’s pressure campaigns to force the department to bend to his agenda.Building a criminal case against Mr. Trump is very difficult for federal prosecutors, experts say, given the high burden of proof they must show, questions about Mr. Trump’s mental state and the likelihood of any decision being appealed, underlining the dilemma confronting the agency.The department has never said whether it is exploring a criminal prosecution of Mr. Trump, though Mr. Garland has vowed to pursue wrongdoing “at any level,” keeping alive the possibility that federal prosecutors might someday charge the former president.A Justice Department spokesman declined to comment.“The Justice Department will have to ask that question: Is there a winning case here?” said Norm Eisen, a Brookings Institution fellow who served as special counsel to the House Judiciary Committee during the first impeachment of Mr. Trump. “If there is strong evidence, but prosecutors don’t think they can secure a conviction, they will have to use prosecutorial discretion.”That said, Mr. Eisen said the evidence that the committee produced in support of its argument could be powerful, and “support the idea that Trump and those around him are at risk of federal or state prosecution.”It was far easier for the committee to claim that Mr. Trump had committed a crime in the context of the court fight that prompted it — a dispute over a subpoena for documents written by a lawyer — than it would be for prosecutors to win a criminal conviction over the same facts, legal specialists said.The filing on Wednesday, which said that the committee had evidence to suggest that Mr. Trump might have engaged in a criminal conspiracy, is the work of three veteran Justice Department lawyers who would be deeply familiar with the complications that such allegations create for the agency.Losing such a case has far-reaching implications. It risks severely undermining the department’s credibility, empowering and emboldening Mr. Trump and his allies, and making it harder for the federal courts to hold future presidents accountable for misdeeds.In publicly sharing its work, the committee has only escalated expectations that Mr. Trump will be prosecuted, regardless of whether its evidence meets the standard that a federal prosecutor must clear to secure a unanimous guilty verdict.In its court filing, the panel suggested it had evidence to support allegations that Mr. Trump committed two crimes: obstructing an official proceeding by working to disrupt the electoral vote count and conspiring with his allies, including the conservative lawyer John Eastman, to defraud the United States by working to overturn the election results.“The evidence supports an inference” that Mr. Trump, Mr. Eastman and several others “entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort,” the filing said.However, the filing was not necessarily a path to prosecution. The committee made its claim in the context of the court fight that prompted it — a dispute over a subpoena for documents written by Mr. Eastman. The standard it must meet to invoke crimes is much lower than it would be for prosecutors to win a criminal conviction, legal specialists said.Specifically, Mr. Eastman has invoked attorney-client privilege to block the subpoena, and the committee wants a judge to enforce it anyway under an exception for materials that involve crimes or fraud.It is asking the judge to view the disputed materials privately, and to do so it need only convince the court that it has a “good faith” reason to believe that such a private viewing “may reveal” evidence that the exception applies — a far lower bar than proving something to a jury beyond a reasonable doubt.The central theory put forward by the Jan. 6 committee is that Mr. Trump tried to disrupt an official proceeding — Congress’s certification of the election results — by pressuring Vice President Mike Pence to illegally reject the electoral votes from certain states.Samuel Buell, a Duke University law professor and former federal prosecutor, said that while the facts of what happened were largely clear, the challenge to convicting Mr. Trump would center on proving that he had a corrupt intent — essentially, that Mr. Trump knew that there was no valid lawful basis for Mr. Pence to do what he was demanding.At a trial, Mr. Trump’s defense team would have a powerful argument about his mental state: Even though government lawyers told him that Mr. Pence did not have that authority, Mr. Eastman told him that the vice president could lawfully do what he wanted. The defense could say this shows that Mr. Trump sincerely thought he was asking Mr. Pence to do something lawful — raising a possible reasonable doubt in jurors’ minds about whether his intentions were corrupt.Mr. Buell said that in an ordinary white-collar criminal case, it is not uncommon for corporate defendants to point to something their lawyers had said to maintain that they did not think they were doing anything criminal. Prosecutors sometimes go forward with such cases anyway, he said, knowing it will be an argument in trial they will need to try to defeat.But the “enormous political implications” of charging the immediate past president — and possible 2024 election contender — make that calculus all the more risky for Mr. Garland, he said.Federal charges against a former president would be a first in American history. While President Richard M. Nixon resigned in 1974 to avoid being impeached, President Gerald R. Ford pardoned him, absolving him of any criminal charges and sparing the Justice Department from prosecuting him.A case against a former president would always be mired in politics, a dynamic especially true now given how deeply polarized the nation has become.If the Justice Department were to criminally charge Mr. Trump, his supporters would most likely interpret it as President Biden’s handpicked attorney general deploying the department to attack the de facto leader of a rival party — particularly if they believe Mr. Trump’s lies that the 2020 election was stolen.Should the Justice Department not bring charges, Mr. Trump’s opponents could feel that it had blatantly abdicated its duties. After the election, Mr. Trump continued to declare himself the winner, denying evidence compiled by his own administration. He pressured public officials to support his false claims, and he exhorted his followers to stop the peaceful transfer of power on Jan. 6.If the Justice Department does not respond to such overt acts, it risks fostering the idea that presidents and their allies cannot be held accountable for behavior that undermines democracy.“Here, it’s a totally different situation because there is an enormous political envelope around whether you would charge this guy,” Mr. Buell said. “At some level you can’t analyze this in terms of what a prosecutor would normally do.” More

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      Barr Rebukes Trump as ‘Off the Rails’ in New Memoir

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      William P. Barr’s memoir of his time as attorney general under George H.W. Bush and then again under Donald J. Trump defends his more recent leadership of the Justice Department.WASHINGTON — Former Attorney General William P. Barr writes in a new memoir that former President Donald J. Trump’s “self-indulgence and lack of self-control” cost him the 2020 election and says “the absurd lengths to which he took his ‘stolen election’ claim led to the rioting on Capitol Hill.”In the book, “One Damn Thing After Another: Memoirs of an Attorney General,” Mr. Barr also urges his fellow Republicans to pick someone else as the party’s nominee for the 2024 election, calling the prospect of another presidential run by Mr. Trump “dismaying.”“Donald Trump has shown he has neither the temperament nor persuasive powers to provide the kind of positive leadership that is needed,” Mr. Barr writes.The memoir — an account of Mr. Barr’s time as attorney general under President George H.W. Bush and then again under Mr. Trump — defends his own actions in the Trump administration that led to sharp criticism of a Justice Department setting aside its independence to bend to White House pressure.Mr. Barr was long considered a close ally of Mr. Trump. But the two fell out toward the end of the Trump administration, when Mr. Barr refused to go along with Mr. Trump’s baseless claims that the 2020 election had been stolen.In a statement last June, Mr. Trump denounced his former attorney general, calling him a “swamp creature” and a “RINO” — meaning Republican in Name Only — who “was afraid, weak and frankly, now that I see what he is saying, pathetic.”For his part, Mr. Barr portrays Mr. Trump as a president who — despite sometimes displaying “the menacing mannerisms” of a strongman ruler as a “schtick” to project an image of strength — had operated within guardrails set up by his advisers and achieved many conservative policy goals. But Mr. Trump “lost his grip” after the election, he writes.“He stopped listening to his advisers, became manic and unreasonable, and was off the rails,” Mr. Barr writes. “He surrounded himself with sycophants, including many whack jobs from outside the government, who fed him a steady diet of comforting but unsupported conspiracy theories.”Throughout the book, Mr. Barr scorns the news media, accusing them of “corruption” and “active support for progressive ideology.” The political left, he writes, became radicalized during President Barack Obama’s second term. He compares its support for social justice issues to “the same kind of revolutionary and totalitarian ideas that propelled the French Revolution, the Communists of the Russian Revolution and the fascists of 20th-century Europe.”Mr. Barr also denounces the inquiry by the F.B.I. and then the special counsel, Robert S. Mueller III, into links between Russia and Trump campaign aides in 2016. He writes that “the matter that really required investigation” was “how did the phony Russiagate scandal get going, and why did the F.B.I. leadership handle the matter in such an inexplicable and heavy-handed way?”Mr. Barr rejects as “drivel” the criticism that his summary of the special counsel’s report that he issued before the report became public was distorted in a way that favored Mr. Trump. Mr. Barr insists that his description — including his declaration that Mr. Trump did not commit obstruction of justice — was “entirely accurate.”In defending that conclusion, Mr. Barr writes that it was a “simple fact that the president never did anything to interfere with the special counsel’s investigation.”But his book does not address any of the specific incidents that Mr. Mueller’s report laid out as raising potential obstruction-of-justice concerns, such as the fact that Mr. Trump dangled a pardon at his former campaign chairman, Paul J. Manafort, while urging Mr. Manafort not to cooperate with the inquiry.In a chapter titled “Upholding Fairness, Even for Rascals,” Mr. Barr defends his handling of two other cases arising from the Mueller investigation. Mr. Barr writes that it was “reasonable” for him to overrule line prosecutors and seek a more lenient sentence for Mr. Trump’s ally Roger J. Stone Jr.And addressing his decision to drop the prosecution of Michael T. Flynn, Mr. Trump’s former national security adviser, for lying to the F.B.I. — even though Mr. Flynn had already pleaded guilty — he writes that the evidence was insufficient, the F.B.I.’s handling of the case had been “an abuse of power” and Mr. Mueller’s charges against him were not “fair.”As he did while in office, Mr. Barr laments that Mr. Trump’s public comments about the Justice Department undermined his ability to do his job.“Even though I was basing decisions on what I thought was right under the law and facts, if my decisions ended up the same as the president’s expressed opinion, it made it easier to attack my actions as politically motivated,” he writes.Mr. Barr also describes resisting Mr. Trump’s bidding in some cases. He declined to charge the former F.B.I. director James B. Comey Jr. for allegedly leaking classified information; insisted that the administration had run out of time to add a question about citizenship to the 2020 census; and rejected Mr. Trump’s “bad” idea that he could use an executive order to end birthright citizenship for children born in the United States to undocumented immigrants.Lawyers at the White House and the Justice Department had to talk Mr. Trump out of those ideas, which could be “bruising” and amounted to “eating grenades,” Mr. Barr writes.On the scandal that led to Mr. Trump’s first impeachment, in which Mr. Trump withheld aid to Ukraine as leverage to try to get Ukraine’s president to announce an investigation into Joseph R. Biden Jr., Mr. Barr was scathing.He calls it “another mess — this one self-inflicted and the result of abject stupidity,” a “harebrained gambit” and “idiotic beyond belief.” But while Mr. Barr describes the conversation Mr. Trump had with Ukraine’s president on the topic as “unseemly and injudicious,” he maintains that it did not rise to a “criminal offense.”Similarly, Mr. Barr writes that he did not think Mr. Trump’s actions before the Jan. 6 attack on the Capitol — which he had condemned in a statement the day after as “orchestrating a mob to pressure Congress” and “a betrayal of his office and his supporters” — met the legal standard for the crime of incitement, even though they were “wrong.”The book opens with a Dec. 1, 2020, meeting with Mr. Trump hours after Mr. Barr gave an interview contradicting the president’s claims of a stolen election, saying the Justice Department had “not seen fraud on a scale that could have effected a different outcome in the election.”Mr. Trump was furious, he writes, accusing Mr. Barr of “pulling the rug out from under me” and saying he must “hate Trump.” After Mr. Barr says he explained why claims of various fraud were unfounded, he offered to resign and Mr. Trump slammed the table and yelled “accepted!” Mr. Trump reversed himself as Mr. Barr left the White House, but Mr. Barr stepped down before the end of the month.His book expands on that theme, going through specific “fact-free claims of fraud” that Mr. Trump has put forward and explaining why the Justice Department found them baseless. He lists several reasons, for example, that claims about purportedly hacked Dominion voting machines were “absolute nonsense” and “meaningless twaddle.”“The election was not ‘stolen,’” Mr. Barr writes. “Trump lost it.” More

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      Archives Found Possible Classified Material in Boxes Returned by Trump

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      The National Archives consulted with the Justice Department about the discovery after the former president sent back documents that he had improperly taken from the White House when he left office.The National Archives and Records Administration discovered what it believed was classified information in documents Donald J. Trump had taken with him from the White House as he left office, according to a person briefed on the matter.The discovery, which occurred after Mr. Trump returned 15 boxes of documents to the government last month, prompted the National Archives to reach out to the Justice Department for guidance, the person said. The department told the National Archives to have its inspector general examine the matter, the person said.It is unclear what the inspector general has done since then, in particular, whether the inspector general has referred the matter to the Justice Department.An inspector general is required to alert the Justice Department to the discovery of any classified materials that were found outside authorized government channels.Making a referral to the Justice Department would put senior officials in the position of having to decide whether to open an investigation, a scenario that would thrust the department into a highly contentious political matter.The Washington Post reported on Wednesday that the National Archives had asked the Justice Department to examine Mr. Trump’s handling of White House records.Officials with the National Archives did not respond to messages seeking comment.In January, after a lengthy back and forth between Mr. Trump’s lawyers and the National Archives, Mr. Trump handed over more than a dozen boxes of materials, including documents, mementos, gifts and letters. Among the documents were the original versions of a letter that former President Barack Obama had left for Mr. Trump when he was first sworn in, and letters written to Mr. Trump by the North Korean leader, Kim Jong-un.Also included in the boxes was a map Mr. Trump famously drew on with a black Sharpie to demonstrate the track of Hurricane Dorian heading toward Alabama in 2019 to back up a declaration he had made on Twitter that contradicted weather forecasts.Mr. Trump in the Oval Office in September 2019. The map of a storm appears to have been altered with a marker to show Hurricane Dorian headed for Alabama.Erin Schaff/The New York TimesThe boxes had originally been sent to Mar-a-Lago from the White House residence, where a range of items — including clothes — were hastily packed up in Mr. Trump’s final days in office. Legally, Mr. Trump was required to leave the documents, letters and gifts in the custody of the federal government so the National Archives could store them.After the F.B.I., during the 2016 presidential campaign, investigated Hillary Clinton’s handling of classified material while she was secretary of state, Mr. Trump assailed her, helping make the issue pivotal in the outcome of that race. In that case, the intelligence community’s inspector general had made a national security referral to the F.B.I., prompting the investigation of Mrs. Clinton.But during Mr. Trump’s administration, top White House officials were deeply concerned about how little regard Mr. Trump showed for sensitive national security materials. John F. Kelly, the White House chief of staff, tried to stop classified documents from being taken out of the Oval Office and brought up to the residence because he was concerned about what Mr. Trump may do with them and how that may jeopardize national security.Similar to Mrs. Clinton, Mr. Trump’s son-in-law, Jared Kushner, and daughter Ivanka used personal email accounts for work purposes. And even after being warned by aides, Mr. Trump repeatedly ripped up government documents that had to be taped back together to prevent him from being accused of destroying federal property.Now Mr. Trump faces questions about his handling of classified information — a question that is complicated because as president he had the authority to declassify any government information. It is unclear whether Mr. Trump had declassified materials the National Archives discovered in the boxes before he left office. Under federal law, he no longer maintains the ability to declassify documents after leaving office.He invoked the power to declassify information several times as his administration publicly released materials that helped him politically, particularly on issues like the investigation into his campaign’s ties to Russia.Toward the end of the administration, Mr. Trump ripped pictures that intrigued him out of the President’s Daily Brief — a compendium of often classified information about potential national security threats — but it is unclear whether he took them to the residence with him. In one prominent example of how he dealt with classified material, Mr. Trump in 2019 took a highly classified spy satellite image of an Iranian missile launch site, declassified it and then released the photo on Twitter.If Mr. Trump was found to have taken materials with him that were still classified at the time he left the White House, prosecuting him would be extremely difficult and it would pit the Justice Department against Mr. Trump at a time when Attorney General Merrick B. Garland is trying to depoliticize the department.The department and the F.B.I. also still have significant scars from its investigation into whether Mrs. Clinton mishandled classified information, as the bureau was accused of unfairly tarnishing her and interfering in the 2016 election.Katie Benner More