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Kudos to MSNBC for publishing this article be Marcy Wheeler, aka emptywheel.

Merrick Garland Isn’t to Blame for Delays in Trump’s Election Interference Case

by Marcy Wheeler, legal and national security journalist

After the Supreme Court delayed consideration of Donald Trump’s immunity claim until April, some liberals directed considerable outrage not just at the court, but also at a member of President Joe Biden’s Cabinet. Such attacks act as if the delay were Attorney General Merrick Garland’s fault instead of justices like Clarence Thomas. These criticisms are misplaced. The Justice Department, before and after Garland’s delayed confirmation, started investigating key figures in the election interference case against Trump in 2021. And accusations of delay ignore the real-world obstacles that special counsel Jack Smith, his team and their predecessors had to navigate carefully — lest the whole case fall apart in court.

The department took overt investigative steps against three of the six alleged co-conspirators identified in Trump’s Jan. 6 indictment in 2021, long before Garland appointed Smith to the case. Days after a New York Times report on Jeffrey Clark’s role in Jan. 6, on Jan. 25, 2021, Justice Department Inspector General Michael Horowitz announced an investigation into “whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The IG investigators remained involved when FBI agents seized Clark’s phone June 23, 2022. The department had already, a month earlier, obtained a warrant for one of Clark’s private email accounts and would obtain a second one the following day. The August 2023 indictment of Trump describes Clark as co-conspirator 4.

In April 2021 — on Deputy Attorney General Lisa Monaco’s first day on the job — the Justice Department obtained a warrant to seize Rudy Giuliani’s phones. That wasn’t a warrant for Jan. 6; it sought evidence that Trump’s lawyer was doing the bidding of Ukrainians when he convinced Trump to fire Marie Yovanovitch in 2019. But the DOJ used the special master review that Giuliani demanded to look at all the communications seized, not just those relating to Ukraine. In September 2021, the judge in that case granted prosecutors’ request to do the privilege review of materials seized from Giuliani’s devices on all files that post-dated Jan. 1, 2018, irrespective of subject. (The special master even prioritized the devices that were used through 2021.)

And in September 2021, prosecutor Molly Gaston — one of two lead prosecutors on the Jan. 6 case against Trump — subpoenaed associates of Sidney Powell as part of an investigation into her fundraising off false claims of voter fraud. Just one paragraph in the Trump indictment describes Powell’s actions, as co-conspirator 3, in the conspiracies charged against the former president. But that paragraph focuses on a topic related to the subpoenas sent out in 2021: Powell’s relentless attacks on Dominion Systems in lawsuits.

Those often ignored early moves against Trump’s co-conspirators — and other investigative developments, such as the purported cooperation of Jan. 6 defendant Brandon Straka, investigative steps implicating Roger Stone, and the prosecution of Alex Jones’ sidekick — go unmentioned in reports that claim Garland delayed the investigation. For good reason: Most happened where reporters and pundits weren’t looking.

But the popular narratives attributing delay to Garland also ignore several factors that did take time.

Kudos to Marcy, as well!  Read the whole thing.

Open thread.

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