WASHINGTON ― After a mob of his supporters attacked the U.S. Capitol on Jan. 6, 2021, it looked like Donald Trump’s political career was over.
Democrats and Republicans alike blamed Trump for inciting the attack, and he only escaped conviction at his Senate impeachment trial — which would have barred him from the presidency forever — because Republican senators insisted it was too late to convict a president who had already left office.
Besides, then-Senate Majority Leader Mitch McConnell (R-Ky.) argued at the time, Trump would face another kind of reckoning.
“We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one,” McConnell said.
That never happened, and many Democrats are ready to place the blame on one man: Attorney General Merrick Garland. They argue he waited too long to appoint a special prosecutor, which allowed Trump and his legal team to stall the case long enough for Trump to win the presidency a second time. Garland made the appointment in November 2022, saying he’d done so partly because Trump had just formalized his bid for the presidency.
The announcement also followed a series of high-profile public hearings by a bipartisan House committee airing the evidence against the former president.
“Garland only started the prosecution after he was in effect forced to by the report of the Jan. 6 committee and the criminal referral,” former House Judiciary Committee chair Jerrold Nadler (D-N.Y.) told HuffPost. “The evidence the Jan. 6 committee used was available from the beginning.”
“Had they proceeded with those prosecutions, I think he would have been convicted and we’d have a different president now,” Nadler said. “Merrick Garland wasted a year.”
Nadler is not alone in thinking so. The Washington Post reported last month that President Joe Biden has expressed regret about picking Garland, believing the nation’s top law enforcement officer took too long to pursue Trump after Jan. 6.
Reps. Bennie Thompson (D-Miss.) and Zoe Lofgren (D-Calif.), members of the Jan. 6 committee, also told HuffPost they thought Garland waited too long.
“I didn’t realize that they were not looking at the whole picture,” Lofgren said. “I think they were taking a look at the foot soldiers.”
While the Justice Department indicted Trump for the mob attack on the Capitol and other crimes related to his attempt to overturn the 2020 election, it did not do so until August 2023, long after the Republican Party had purged most members who spoke out against Trump.
A Supreme Court decision relating to presidential immunity created further delays, and ultimately, Trump won the 2024 election before the case could finish up and he could stand trial. Since longstanding Justice Department policy bars prosecuting a sitting president, the DOJ dropped the case after Trump’s November victory, allowing him to escape responsibility and walk back into the White House.
Garland reportedly told prosecutors early on in 2021 that they could pursue cases against people involved in the Jan. 6 riot wherever the evidence led, even if it implicated the former president. But it turned out investigators couldn’t pinpoint financial ties between Trump and key players on the ground.
Prosecutors apparently did not initially consider building a case out of Trump’s public election-fraud lies, or his well-publicized efforts to coerce various officials into undoing the 2020 election, including his demand during a phone call that Georgia’s secretary of state fraudulently “find” him 11,000 votes. Details of the call became public within a day. That material became a key component of special counsel Jack Smith’s eventual case.
Still, it was likely inevitable that if the Justice Department prosecuted a former president, the Supreme Court could get involved to settle questions of presidential immunity that Trump would raise in court. It’s possible that even if the Justice Department had acted swiftly, appeals to the Supreme Court could have bogged the case for years.
The Justice Department declined to comment for this story.
Trump is now expected to continue his efforts to rewrite history by following through on pardons for those who participated in the attack ― whom he has hailed as “heroes” and “patriots” ― after his swearing-in on Jan. 20 at the East Front of the Capitol, the very scene of the crime.
Sen. Adam Schiff (D-Calif.), who served on the House select committee that investigated the attack, said the Justice Department “moved with expedition when it came to the people who broke into the building, but were those at a higher level, they waited almost a year on.”
“That was a fatal mistake,” he added.
Federal prosecutors have secured more than 1,000 convictions so far relating to the Jan. 6 attack, and more than 600 rioters have been sentenced to prison, with terms ranging from a few days behind bars to 22 years in federal prison for the head of the Proud Boys.
Still, when it comes to the person who spread dangerous lies about the 2020 presidential election, and who urged hundreds of his supporters to march on the Capitol in protest of Biden’s electoral certification, the same cannot be said.
“I think the department was so focused on being kind of by the book, and being so clear that there wasn’t any political interference,” said Sen. Tina Smith (D-Minn.). “I really worry that, you know, he’ll become president, and he’s going to pardon a bunch of people and [a] great sort of whitewashing of what happened will continue.”
Other Democrats were more charitable toward the Justice Department, noting that ― unfairly or not ― Trump was reelected with a popular-vote win over Vice President Kamala Harris even in spite of his role in the Jan. 6 attack and his efforts to fraudulently overturn an election.
“This isn’t about the DOJ. This is about Trump being successful in rewriting history,” Sen. Peter Welch (D-Vt.) said. “He’s validated the folks who attacked the Capitol, and I don’t think a month earlier, a month later, six months earlier, that would have made a difference.”
“The reality is the American people reelected him after that. Who would have thought that?” Welch added. “Trump insisted that this was a peaceful demonstration, continued to insist that the election was stolen, he hasn’t backed down from that at all ― and he got reelected.”
Trump’s reelection, however, largely happened despite the American public’s disapproval of his behavior on Jan. 6. Roughly two-thirds of the people who voted in the 2024 election believed Trump had “a lot” or “some” responsibility for violence on Jan. 6, according to exit polls. The problem for Trump’s opponent is that 70% of those who believed he had some responsibility for the violence voted for him anyway.
Similarly, two-thirds of American adults oppose Trump’s plans to pardon people convicted of crimes related to the insurrection, according to a Washington Post-University of Maryland survey last month.
Though the criminal cases against Trump are all but dead, he could be on the hook for damages as a result of a handful of civil lawsuitsbrought against him relating to the Jan. 6 insurrection, including by law enforcement officers, congressional Democrats and the estate of a police officer who died. Unlike federal suits, civil litigation can proceed against a sitting president.
Moreover, outgoing Sen. Mitt Romney (R-Utah), who voted to convict Trump over the Jan. 6 attack, said he believes history will judge Trump’s wrongdoing harshly.
“I think the people who write history are serious people, and they will recognize, as the world does, that it was a terrible assault on the world’s model democracy,” Romney said. “It will be seen as such, and the effort to try and pretend it was something else will fly in the face of reality.”
