Hours after he was sworn in as attorney general, Merrick Garland and his deputies gathered for a briefing on the case he had promised to make his highest priority: bringing to justice those responsible for the attack on the U.S. Capitol on Jan. 6, 2021. Federal agents had conducted 709 searches, charged 278 rioters and identified 885 likely suspects, said Michael R. Sherwin, then-acting U.S. Attorney for the District of Columbia. Sherwin was responsible for prosecuting all crimes stemming from the Jan. 6 attack. He had made headlines by refusing to rule out the possibility that President Trump himself could be culpable. “We are looking at all actors, not only the people who went into the building,” Sherwin said. Absent from Sherwin’s 11-page presentation to Garland on March 11, 2021, was any reference to Trump or his advisers — those who did not go to the Capitol riot but orchestrated events that led to it. A Washington Post investigation found that more than a year would pass before prosecutors and FBI agents embarked on a formal probe of actions directed from the White House. Even then, the FBI stopped short of identifying the former president as a focus.
A wariness about appearing partisan, institutional caution, and disputes over how much evidence was sufficient to investigate the actions of Trump and those around him contributed to the slow pace. Garland and Deputy Attorney General Lisa Monaco charted a cautious course aimed at restoring public trust in the department while some prosecutors chafed, believing that top officials were shying away from looking at evidence of potential crimes by Trump and those close to him. In November, after Trump announced he was again running for president, Garland appointed special counsel Jack Smith to take over the investigation into Trump’s attempt to overturn the 2020 election. Whether a decision about Trump’s culpability for Jan. 6 could have come earlier is unclear. Before Garland was confirmed, Sherwin, senior Justice Department officials and Paul Abbate, the top deputy to FBI Director Christopher A. Wray, quashed a plan by prosecutors in the U.S. Attorney’s office to investigate Trump associates for any links to the riot, deeming it premature. They insisted on a methodical approach — focusing first on rioters and going up the ladder. The strategy was embraced by Garland, Monaco and Wray. They remained committed to it even as evidence emerged of an organized, weeks-long effort by Trump and his advisers before Jan. 6 to pressure state leaders, DOJ officials and Vice President Mike Pence to block the certification of Biden’s victory.