The DOJ Is Up Against the Clock to Prosecute Trump for Jan. 6

We talked to a federal prosecutor about a potential criminal referral by the Jan. 6 committee, and how we’re all living in Merrick Garland’s head.
U.S. Attorney General Merrick Garland speaks during a press conference at the U.S. Justice Department on April 06, 2022 in Washington, DC. Garland announced new measures the DOJ would be taking to prosecute criminal Russian activity. (Photo by Anna Moneym
U.S. Attorney General Merrick Garland speaks during a press conference at the U.S. Justice Department on April 06, 2022 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)

This content comes from the latest installment of our weekly Breaking the Vote newsletter out of VICE News’ D.C. bureau, tracking the ongoing efforts to undermine the democratic process in America. Sign up here to get it in your inbox every Friday.

The House January 6 committee has evidence that former President Donald Trump and his advisors committed crimes in their attempt to overturn the 2020 election. But the committee can’t hold Trump accountable. Only the Justice Department can do that, by convening a grand jury, and ultimately charging people. 


In between new reports of Don Jr.’s early-adopter status as a coup plotter, Roger Stone’s acolytes fanning the flames pre-Jan. 6, and coup scholar John Eastman trying to DeLorean his way back to 2020 to reclaim electors, committee members are busily denying that they’re split on whether to declare directly to the Justice Department: Donald Trump committed crimes.

I called up Ankush Khardori, a former federal prosecutor and a contributor for Politico and New York Magazine’s Intelligencer. We talked about a criminal referral, whether it can actually influence what the DOJ does, and how we’re all living in Merrick Garland’s head. Our conversation has been edited for length.

There’s this big debate among January 6 watchers right now: Should the committee make a criminal referral on Donald Trump. Does it matter, though?

I think it’s very unclear it would have any effect on the Justice Department or on the public’s appetite for a serious investigation of Donald Trump. 


Look, we’ve already heard from the committee that they think Trump committed crimes. Impeachment happened, where the managers presented their case very much in the narrative of Trump committing a crime around Jan. 6. The Eastman filing happened, where the committee said, “We have evidence Trump committed a crime.” It’s a little bizarre to me that a criminal referral would be a revelation to anyone.

Isn’t it powerful for this bipartisan committee to say, in black and white, “We have evidence that Donald Trump did crimes, and these are the crimes?”

Sure, but criminal referral is going to be as important as the media and commentators make it. The issues that will matter in the end are the facts the committee has, how clearly they lay them out so the public can understand, and how far along DOJ already is in an investigation. In other words, will the committee’s product push them over the edge to prosecute Trump or his inner circle. And I think there’s a good chance that window has closed. 

One knock on the Mueller report is that it had substantial evidence Trump committed obstruction of justice but that Robert Mueller never said, “There was crime here.” The report was complicated, and thus vulnerable to demagoguery and misinformation. In the end, most people think it found nothing, and it didn’t find nothing. Maybe that’s an argument for clearly saying, “There was crime here” if you have evidence there was crime there.


Mueller was constrained under DOJ guidelines about what the report could say, but you’re right. The report wound up a convoluted mess, unintelligible in many places: “We’re not saying he’s guilty, but we’re not saying he’s exonerated.” Like, gibberish. But there are some key differences with the January 6 committee. One is that the Mueller investigation was largely secret. Here, the committee is going to have a run-up where they can hold hearings and structure them so that the public gets a very clear picture of the evidence. I expect that’s going to happen in a strategic way. It’s not just going to be random witnesses. 

Shouldn’t the committee be looking for the best political argument to leverage Justice to do the legal thing?

I’ve seen the reporting that the committee members are focused on writing a report that is publicly consumable, engaging, and intelligible to the public and that they can digest. I think that’s critical. The factual narrative will matter most, much more than a declaration of a criminal referral. They need a happy medium between the Mueller report and the 9/11 Commission report, which is the gold standard but took years to write. 

I’ve got the solution! The 9/11 Commission report had a graphic edition. It was a huge hit. I bought it in a comic shop. Talk about accessible. Maybe the January 6 committee should do one.


That would be pretty good. But like, it’s the speed that matters too. They’re doing hundreds of interviews, reviewing tens of thousands of documents. They’re gathering, digesting, and presumably writing, in real time. It’s an extraordinary test. 

But there are new facts the committee has put out even recently. We didn’t know until the committee’s filing in the litigation over John Eastman’s emails that Eastman knew his legal theories urging Pence to overturn the election were bogus. He told Pence’s lawyer that he knew his theory wouldn’t survive Supreme Court review. 

That’s an admission that your legal theory is baseless. I was like, oh my God, I can’t believe someone admitted this. That has major implications for fraud and conspiracy. There’s a lot new, even now.

The committee report can have an impact on what the public thinks. But the only thing that really matters legally is whether we wind up with a grand jury, right? One that can force people to testify.

This is what I mean when I said that window may have closed. By the time the committee issues a report, how much time is there before Trump announces [his candidacy for president]? Because I think that’s going to significantly complicate any criminal investigation. All of a sudden your target is an actively running candidate. It’s going to be harder and harder for Merrick Garland to overcome the concern we know he has with political perceptions. 


We don’t actually know how far along DOJ is in investigating Trump or his inner circle, if they are at all. But if they’re not seriously doing it already, then no report, criminal referral or not, is going to make them start. That’s why I think the referral thing is overblown.

I want to say how crazy it is that our conversation has boiled down to what makes Merrick Garland tick, what makes him sleep well at night.

Yeah. What is your working model of Merrick Garland’s decision-making process? I think it’s crazy that we are in a situation where anyone in the public needs to be worrying about the Attorney General’s mental model. There’s no reason the Justice Department could not be much more transparent about the nature of the investigation, even broad strokes. 

It isn’t like the fact pattern is some obscure thing that none of us know about. The notion that the Justice Department must keep its mouth shut is utter BS.

I just realized this whole criminal referral discussion we’re having is for Merrick Garland, the Audience of One. All of a sudden that feels very Trump. 

Yeah, like, I have my suppositions about Garland’s mental process, but I think it’s kind of ridiculous that we’re stuck in this situation.

There’s no one we’d rather be stuck in Merrick Garland’s mind with than you. Sign your friends up for Breaking the Vote!

unnamed (2).jpg

The revolution will be texted

CNN is out this morning with voluminous post-election texts collected by the January 6 committee between two GOP lawmakers and White House chief of staff Mark Meadows. See for yourself as Sen. Mike Lee helps Meadows strategize ways to overturn the election, like on Dec. 8, 2021: “If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a path.”  

T.W.I.S.™ Notes

Counsel Bluffs

This Week in Subpoenas, two of Donald Trump’s White House lawyers each had a chat with the January 6 committee, as the panel continues to reach closer to Trump. Former White House Counsel Pat Cipollone and his deputy, Patrick Philbin, each met “informally” with the committee to answer questions, and though apparently the testimony wasn’t sworn or transcribed, that could come later. 

Cipollone fell out with Trump at the end of his term, mostly for resisting the plan to weaponize the Justice Department in Trump’s coup. He threatened to resign, along with other officials, if Trump went ahead with a scheme to fire the acting attorney general and replace him with Jeffrey Clark


While informal chats sound low-key, they might actually be a huge deal, in a possible-grand-jury sort of way. Cipollone and Philbin surely have info that could be key to establishing what Trump was doing, thinking, and saying before and during the attack on the Capitol. And they may have been privy to other prongs of the coup attempt besides the electoral count disruption and the DOJ plot. Think of that wild Dec. 19 Oval Office meeting where “Kraken” lawyer Sidney Powell, QAnon icon Michael Flynn, and others lobbied Trump on using the U.S. military to seize and examine voting machines. 

And speaking of the people surrounding Donald Trump who can speak to what he said and did on Jan. 6… On Thursday, Trump advisor and most popular kid in school Stephen Miller popped up to testify in the committee. Miller was subpoenaed but sued to keep the committee away from his phone records. Now the committee appears to be closing the circle around Trump, talking to his closest advisors, lawyers, and daughter.

Rampant voter fraud unlike we’ve ever seen

More from our ongoing coverage of people Totally Concerned with voter fraud who then do voter fraud. As any Breaking the Vote reader knows, Trump White House chief of staff and End-Times texter Mark Meadows is under investigation in North Carolina for voting from a Macon County trailer where he never lived. Now, officials have removed Meadows from the state’s voter rolls while the voter fraud investigation proceeds.

Meanwhile, two men in Florida pleaded guilty to voting twice in 2020, a third-degree felony punishable by up to five years in jail. The men hail from The Villages, a gigantic and politically legendary city of seniors outside Orlando. (Who can forget this guy?)


One of the men has no registered political affiliation, while the other is a registered Republican. Two other people from The Villages are also accused of voting multiple times, but have yet to stand trial.

Riot police

A Virginia man this week became just the second person convicted by a jury for rioting on Jan. 6. And he’s a cop! Thomas Robertson was convicted on six counts, including felony obstruction. Thomas and his buddy Jacob Fracker were both police officers in Rocky Mount, Virginia, when they traveled to D.C., rioted, entered the Capitol, and took selfies. 

Only Fracker flipped on his felonious friend, copped a plea, and provided testimony that helped get Robertson convicted. Sentencing is coming up soon. 

Cult 45 

Dustin Thompson’s trial this week marks the first time a jury is hearing the “Trump-made-me-do-it” defense from a Jan. 6 riot defendant. Thompson’s lawyer says Trump “groomed” the 38-year-old exterminator from Ohio. As for Thompson’s wife, Sarah? “Dustin spent a lot of time on the internet,” she told the jury. 

unnamed (4).jpg

“They have morphed into pure evil even blatantly rigging an election and paying off the political caste. We must smite them now and drive them down.  - Thomas Caldwell, on Facebook, a week before Jan. 6, according to his federal indictment

unnamed (1).jpg

(Jaws music) duhhhhh-NUH — Are those sharks circling Rudy Giuliani, or just federal prosecutors? Feds from the U.S. Attorney’s office that Rudy once ran are reportedly nearing a decision on whether to charge him in the scheme to leverage Ukraine’s need for weapons to get election-year dirt on Joe Biden. Rudy helped prosecutors unlock several of his devices as part of their investigation. But why is Rudy cooperating now? Is he looking for good will  in some other criminal investigation? Say, one possibly looking at the 2020 coup plot? Stay tuned.  

Rebels who got a clause Rep. Madison Cawthorn does not like a good party. But Washington’s elite cocaine/sex people may not have the freshman congressman to chase for much longer. A federal court has revived the bid of voters and a citizens group to disqualify Cawthorn from the 2022 ballot because of his alleged involvement in the Jan. 6 insurrection. A lower court halted the case last month, but the Fourth Circuit Court of Appeals has ordered a new hearing for May 3. 


At issue is whether Section 3 of the 14th Amendment bars Cawthorn from holding federal office. That’s the little part of the Constitution that bars people who’ve taken an oath to defend the Constitution, then participated in “insurrection or rebellion,” from holding office again. North Carolina’s primary is May 17. Cawthorn appears to have a tough primary, and he could lose anyway

The best defense Jonathan Mosely got disbarred, compared COVID vaccine measures to the Holocaust, and has a habit of filing wild briefs as he represents one of the accused Oath Keepers seditionists. Now the federal judge presiding over the trial has had enough and told Mosley to knock it off.  

Q’ing up for the coup —  Mark Finchem isn’t just Donald Trump’s hand-picked, QAnon-addled GOP candidate for Arizona secretary of state who yells; he’s also a key part of how Trump tried to infect the Department of Homeland Security with his plot to stay in power. (What’s a better qualification for running your state’s elections than that?)

Newly unearthed emails show that Finchem tried to get the Cybersecurity and Infrastructure Security Agency at DHS to conduct a national audit of voting machines after Trump lost. His efforts more or less coincided with the Dec. 19 “seize the voting machines” meeting in the Oval. 

DHS officials responded and met on the matter but ultimately decided against the audit. But it wasn’t for lack of hounding: Both Giuliani and Phil Waldron, author of a PowerPoint coup plan that caught the attention of the January 6 committee, were also involved with pressing a government national security agency to help keep Trump in power. 

unnamed (3).jpg

Q candidates are on the ballot in 26 states. GRID 

Book details tension with McConnell over Trump’s bid to reverse Biden’s electoral win.  CNN

How Birds Aren’t Real took on the conspiracy theorists. THE GUARDIAN