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Less than half a year before the midterm elections, there’s suddenly a lot of movement in the investigations into the effort to overturn the last presidential election.
The House committee investigating the January 6, 2021, insurrection is set to unveil its work at a prime-time hearing on Thursday, just days after the Department of Justice announced sedition charges against some riot participants. Separately, CNN published new reporting about the lengths to which a slate of shadow electors in Georgia were asked to cloak their activity.
That’s a lot to keep track of.
I went to Katelyn Polantz, CNN’s senior reporter for crime and justice, to read in on what’s happened and what to expect this week.
Our conversation, conducted by email and lightly edited, is below:
What are the top-line developments?
WHAT MATTERS: It’s been a busy couple of weeks! What are the broad strokes of what we’ve learned about the Department of Justice’s investigation into the effort to overturn the 2020 election?
POLANTZ: Broadly, it’s already sweeping, and it’s expanding. The biggest developments in recent weeks are:
- The Justice Department’s new seditious conspiracy charge against the Proud Boys – the second of its kind in this investigation.
- The footsteps of investigators that we’ve picked up as they look at the Trump campaign’s use of “alternative” Republican electors in battleground states that Donald Trump lost, like Georgia.
There are other things to watch.
As the DOJ continues to investigate right-wing militia groups and those who organized the rallies that preceded the violence on January 6, prosecutors continue to sign up cooperators, gather more evidence and reveal to the public more of what they’ve learned. Neither the Proud Boys leaders nor the Oath Keepers leaders have gone to trial yet, and the investigation into both likely will continue until those trials get nearer.
As for complex investigations that cross more into elite political circles, we know the DOJ is asking witnesses not only about the Trump electors, but also about the organizing of the pro-Trump rally on January 6, and about members of the government who may have tried to obstruct the 2020 presidential vote result. Those investigations touch on many, many players potentially up to and including Trump.
No one has been charged yet out of those legs. But they are crucial investigations to watch.
Will the insurrection be tied to the fake electors?
WHAT MATERS: There are two distinct things you’ve been writing about – seditious conspiracy charges for Proud Boys who charged the Capitol and the wrangling of fake electors by the Trump campaign. Both the insurrection and the effort to overturn the election will feature in the January 6 committee hearings on Capitol Hill. Is it your sense that these two things – fake electors and disrupting legitimate electors – will come together in a criminal case?
POLANTZ: That remains to be seen, and depends on where the evidence leads. Attorney General Merrick Garland said it himself back in January: “The facts tell us where to go next.”
We know all of the investigations – of the right-wing groups, of the violent actors on January 6, of the rally organization, of the fake electors – fall under the banner of the DOJ’s January 6 investigation that’s run out of the US Attorney’s Office in Washington, DC.
That doesn’t mean cases within it will merge. But evidence that develops in some cases certainly could lead investigators toward others.
From dogged reporting and other fact-finding efforts over the past year and a half, we have a much better understanding of how the fake electors plan fit together with the Trump campaign’s (failed) efforts in court to overturn the results.
Both of those machinations spread the disinformation to Trump followers around the country that the election might have been stolen – encouraging the masses to descend upon Capitol Hill to advocate for “stopping the steal.” Under that framework, investigators are now looking for violations of federal criminal code.
Who are these investigations focused on?
WHAT MATTERS: Who might be subjects of the inquiry into the Georgia electors?
POLANTZ: That list, so far, appears to be long – and largely focused around lawyers for the Trump campaign and a few other close advisers, in addition to those who served as Trump electors themselves.
The subpoenas have sought communications between alternate electors and notable names such as former Trump attorney Rudy Giuliani, adviser Boris Epshteyn, campaign lawyer Justin Clark, right-wing attorney John Eastman and Bernard Kerik, a longtime friend of Giuliani’s.
Is Trump at risk?
WHAT MATTERS: What’s your sense of whether the Justice Department could bring charges against the former President?
POLANTZ: Whether DOJ could and would bring charges against the former President is a very complicated question.
The Mueller report spent 200 pages analyzing some of the legal wormholes of an obstruction case against Trump. For the current DOJ to determine an answer related to January 6 may take similar levels of legal hand-wringing before a decision is reached.
We do know now, though, that two federal judges have looked closely at the facts and said they believed Trump could have some level of culpability for his actions before and during the attack.
What about the other investigations?
WHAT MATTERS: There is also an investigation in Georgia into the effort to overturn election results. Would the Justice Department wait for the state or go first?
POLANTZ: We don’t exactly know the extent of the interaction between these two investigative bodies. But typically, with something like this, they would run their investigations separately.
CNN’s Sara Murray and Jason Morris have been tracking what the Fulton County grand jury is up to, and their reporting finds that investigation to be a much broader inquiry into any efforts to interfere in the election in the state. That would include the alternate elector scheme of course, but that’s a different thing.
What about beyond Georgia?
WHAT MATTERS: The major evidence in Georgia is a recording of Trump pushing state officials to “find” votes, but there was also pressure from Trump on officials in other states. Does it seem like this investigation extends outside of Georgia?
POLANTZ: Sure does. As I’ve tracked these grand jury subpoenas related to January 6, there’s a pattern so far: The Justice Department sought information from Republicans who had been lined up to be electors, then dropped out, for one reason or another. Witnesses like these have been contacted by federal investigators in at least two states – Georgia and Michigan – but there are Republican would-be electors in three other states as well.
Is the Comey rule still a thing?
WHAT MATTERS: It is an election year. I thought the DOJ was supposed to quiet investigations that could affect elections – the so-called Comey rule. Is that still its policy? How could it affect what’s going on at DOJ now?
POLANTZ: CNN’s Evan Perez was able to report recently that top Justice Department officials are indeed mindful that they may need to stop issuing subpoenas later this summer because of the midterm elections.
The Justice Department generally tries to refrain from taking overt investigative steps in the two months before an election, but it’s unclear in this situation, with an investigation this sprawling, exactly where they will draw the line on what this curtails in the quiet period.
Will these developments quiet criticism of Garland?
WHAT MATTERS: Attorney General Garland had previously been the subject of criticism for not pursuing a more systemic investigation of the insurrection or the effort to overturn the election. Will what we’ve learned quiet that knock on him?
POLANTZ: Armchair quarterbacks always have criticism of Garland not being bold enough, do they not? He has also received plenty of criticism from the right.
There’s always been a bit of a disconnect between the public perception of this investigation and the actual steps being taken in it. There’s ample criticism of Garland being slow and not aggressive, but the Justice Department has charged more than 800 defendants and secured guilty pleas from more than a third of those. That is a massive undertaking for the adjudication of justice. It is the largest federal investigation in history.
The crime of the breach of Congress occurred on January 6, 2021, and it was shortly after the one-year anniversary that we saw the DOJ’s first seditious conspiracy charge land. That was also when we picked up indications that the investigation had expanded outside of just those on the grounds that day and into political circles.
As any prosecutor will tell you, investigations take time. The DOJ has five years, under the law, to investigate and prosecute as they see fit. We just reached the end of the first quarter.