It was early in the largest investigation in Justice Department history, and Trump was at his lowest point, abandoned by many Republican lawmakers who were still seething over the riot he helped inspire.
For months, the FBI and a team of prosecutors looked for potential links between Trump’s inner circle and the Proud Boys, whose leader was ultimately found guilty of seditious conspiracy and is serving 22 years in prison, the longest sentence of any January 6 defendant.
Investigators spent much of that summer poring over call records of Proud Boys members and conducting scores of interviews. They homed in on a period in late 2020, when an informant alleged an interaction between Trump or his inner circle and the Proud Boys occurred.
Prosecutors inside the Justice Department also dug through reams of opaque financial records, searching for any direct links between Trump and the organizations that brought “Stop the Steal” rallygoers to Washington for his speech ahead of the Capitol attack. From there, they examined the so-called war room setup at the Willard hotel in Washington, where Steve Bannon and other Trump supporters strategized how to thwart the certification of Joe Biden’s electoral victory.
In the end, no direct criminal links to Trump emerged. The suspected Proud Boys meeting, the Willard hotel room and the rally fundraising were all dead ends.
While federal investigators continued to pursue Trump over his efforts to overturn the 2020 election, mostly done in plain sight, they always faced long odds and a ticking political clock. The countdown compressed as Trump went from party pariah to inevitable Republican nominee, and expired once he won reelection.
As the president-elect prepares to retake the White House, inside the Justice Department, officials are taking stock of the failed effort to prosecute what many of them believe was a viable criminal case against Trump for obstructing the peaceful transfer of power four years ago.
With special counsel Jack Smith expected to release a final report on the investigation in the coming days, critics of Attorney General Merrick Garland, including some inside the Justice Department, have tended to zero in on decisions made during 2021, describing it as a lost year.
In interviews with more than a dozen people familiar with the investigation, essentially two camps emerged — those who believe the early pursuit of provocative leads ultimately wasted time, and those who say the DOJ had no choice but to exhaust all investigative avenues.
For the prosecutors and investigators involved, 2021 was a year of chasing ghosts. Top officials believed multiple investigative leads that seemed to tie Trump directly to the violence would help make the case against him. Some saw pursuing the more explosive lines of inquiry as an essential first step.
Some top officials at the Justice Department always thought that an unprecedented prosecution of a former president would take about five years given the constitutional questions it would raise, ranging from immunity to separation of powers, according to people briefed on the investigation.
But critics have argued they didn’t have the luxury of taking that long, with some saying their failure to take proper account of the political calendar doomed the case from the outset.
Top DOJ officials bristle at the notion that the department sat on its hands in 2021 and somehow missed its chance to prosecute Trump.
One US law enforcement official familiar with the investigation said criticism of the first year misses the reality that investigators didn’t just blindly go after Trump, but rather followed the evidence as Garland has repeatedly said they would.
“The Justice Department does not make investigative steps public,” the official said. “Many times, when people assume nothing is going on, it’s because as a general practice we don’t make the investigative steps public.”
The official said critics miss the point that it’s not the Justice Department’s job to stop Trump. “It’s not our job to influence elections,” the official added.
Still, it wasn’t until August 2023, two and a half years after the events of January 6, that special counsel Jack Smith filed a criminal indictment of Trump for his actions related to what happened that day. The indictment alleged Trump conspired to defraud the United States and obstruct an official proceeding by spreading false election fraud claims and by trying to subvert the Electoral College process by plotting to submit fake electors.
According to two former DOJ officials familiar with the investigation, the charges included in the indictment could have been brought a year earlier.
Trump’s goal was always to delay any prosecution, wielding claims of executive privilege and eventually absolute immunity, and take his chances with US voters.
It’s a strategy that ultimately prevailed, thanks in part to the Supreme Court, which ate up seven months of the calendar — first by rejecting Smith’s request in December 2023 to fast-track a ruling on Trump’s claims of immunity, and then by waiting until July to grant Trump broad immunity against any prosecution regarding official acts he took as president.
An unprecedented prosecution
From the earliest days inside the Justice Department, there was a debate about whether there was enough evidence to pursue charges against Trump. Garland himself told DOJ officials that investigators needed to show what evidence could sustain any prosecutions, including against the former president, according to current and former officials briefed on the investigation.
The decision was complicated by the sprawling set of criminal investigations that included more than 1,500 rioters who stormed the Capitol that day, ranging from some who were part of right-wing extremist groups that coordinated their attack to others who entered the Capitol amid the pro-Trump throngs.
The effort by some investigators focused on Trump’s role moved in fits and starts nearly from the beginning. The so-called lost year of the Trump investigation underscored the investigative and legal hurdles, and the difficult odds the Justice Department always faced.
While Trump’s actions in public leading up to January 6 and during his speech at the Ellipse — when he encouraged rallygoers to march on the Capitol and “fight like hell” — seemed to many observers to be clear incitement of a riot, federal law requires more direct evidence of connections to the riot to sustain more serious charges.
One former prosecutor involved in the early investigation said the Justice Department’s time-tested strategy of working from the bottom up to find potential wrongdoing by people at the top met its biggest test in its January 6 probe of Trump.
In its early stages, the investigation was mainly run by prosecutors in the Public Integrity Section within the US attorney’s office in DC. Those prosecutors included J.P. Cooney, a veteran public corruption prosecutor who prosecuted Trump allies in the first Trump term and Democratic former Sen. Bob Menendez of New Jersey in 2015.
Cooney strongly pushed the idea of looking into financial connections between the Trump team and the riot on January 6.
To access certain evidence, prosecutors had to confront the limits of executive privilege, since some of Trump’s aides in the White House and the Justice Department were involved in his election-denying efforts. The legal battles that ensued would take months to resolve.
By June 2021, Garland and his No. 2, Deputy Attorney General Lisa Monaco, decided Cooney’s team needed more help. That fall they brought in an aggressive, experienced prosecutor from Maryland named Thomas Windom to join the investigative team in Washington. Windom, working under Garland’s supervision, emerged as a key leader in the prosecution and narrowed the investigation’s focus squarely on Trump.
But those moves were all happening behind closed doors. It wasn’t until January 2022 that the public got its first indication Garland was even interested in moving forward with a potential case against Trump, as the Justice Department was bringing cases against hundreds of rioters.
“The actions we have taken thus far will not be our last,” Garland said in a speech marking the first anniversary of the riot. “The Justice Department remains committed to holding all January 6 perpetrators, at any level, accountable under law whether they were present that day or were otherwise criminally responsible for the assault on our democracy.”
Windom would eventually issue grand jury subpoenas to dozens of people close to the once and future president, including those who helped orchestrate the fake electors plot, as well as those involved in planning for protests or rallies on January 6.
‘You can’t take politics out of politics’
No matter how much Garland and top leaders at the Justice Department tried to disassociate the investigation from politics, they were never able to operate in a vacuum. By 2022, they weren’t even the only group in Washington investigating January 6. In June of that year, the House select committee investigating the riot began holding a series of high-profile hearings tailored for TV.
Tensions between prosecutors at the Justice Department and members of the House committee emerged from the start. Since federal investigators are strictly prohibited from sharing any information, the department repeatedly denied the committee’s requests for help or evidence in its investigations.
With the House committee’s January 6 hearings playing out in public, prosecutors spent much of 2022 in secret court hearings trying to pierce the constitutional privileges, executive and congressional, that shielded evidence they needed before they could make a decision on possible charges against Trump.
With the congressional midterm elections looming that fall, top Democrats grumbled publicly that Garland may have already missed his moment.
“You can’t take politics out of politics,” added House Majority Whip Jim Clyburn, one of Biden’s closest allies in Congress.
In some ways, federal prosecutors benefited from the committee’s work, which isn’t subject to the same strict rules barring the release of information to the public. The extensive testimony and evidence that the committee laid out in its public hearings, plus its final report, ended up boosting the prosecution by giving Windom’s team evidence it did not yet have.
Hints of Windom’s investigative steps started seeping into public view by September 2022, when a grand jury was empaneled in Washington, DC. For months, witnesses and prosecutors were seen walking into DC’s federal courthouse, which sits along the same route many Trump supporters took as they marched from his speech at the Ellipse to the Capitol on January 6.
Numerous figures in Trump’s inner circle, including former Vice President Mike Pence, were subpoenaed to give secret testimony. Pence was among a handful of crucial witnesses who ended up testifying to the federal grand jury after refusing a subpoena from the House select committee.
The stakes were raised in August 2022, when the FBI seized boxes containing classified documents from Trump’s Mar-a-Lago estate in Florida. The move laid open to the public a second investigation underway into Trump, this one concerning his retention of classified government documents.
By the time Trump announced his 2024 presidential campaign in November 2022, Garland had no choice but to appoint a special counsel to handle the dual investigations. On November 18, Garland named Jack Smith as special counsel, tapping a respected prosecutor who was trying war crimes cases at The Hague to oversee the two Trump investigations.
When the January 6 House select committee released its final report that December, it also sent to the Justice Department criminal referrals for Trump and some of his allies, including lawyer John Eastman, suggesting all of them should be federally prosecuted. The referrals didn’t move the needle for Justice Department officials who viewed their burden of proof as much higher than a congressional investigation. But it added to public pressure on the department.
A year in limbo
The investigation played out behind the closed doors of a grand jury room into the summer of 2023, when the grand jury handed up a sweeping indictment charging Trump with four federal charges for conspiracy and obstructing an official proceeding.
Bringing an indictment set off a series of extraordinary legal battles that would delay the case so dramatically that it would never go to trial.
Trump pleaded not guilty, and his team of lawyers argued in court that the charges were unconstitutional and should be thrown out, focusing their challenges on the issue of presidential immunity.
Tanya Chutkan, the federal trial judge assigned to the case in DC, quickly rejected those immunity claims. But the case was nonetheless bogged down in a slow appeals process grinding its way toward the Supreme Court. Smith requested an expedited ruling from the high court on questions of whether Trump enjoyed immunity for actions taken while president, but in December 2023, the request was denied.
With the 2024 presidential campaign underway, the investigation sat stagnant for months, as prosecutors waited for the Supreme Court to decide how much, if any, immunity Trump enjoyed from actions he took as president. Through the first half of the year, Trump cruised through the Republican primaries to the inevitable GOP nomination.
Finally, in July 2024, the Supreme Court held that Trump enjoyed “absolute” immunity from prosecution for actions taken within his core constitutional powers and a more limited immunity for other official actions.
The ruling was a devastating blow to the case. But it wasn’t fatal. Prosecutors believed the core of the charges still held. But they were running out of time.
By the end of the summer, with Trump appearing close to victory at the polls, the Smith team began planning for the possibility that the fate of their prosecution efforts would be decided by voters.
People in Smith’s office have been gaming out legal options and bracing for retribution if Trump returned to the White House. Even before the election, the office had dwindled to a skeleton crew, as prosecutors left for other jobs. Those who were left girded for the future, taking harassment briefings, especially related to online doxing, cybersecurity and stalking.
Trump’s victory on November 5 dealt the final blow.
Smith consulted with top Justice Department officials, who affirmed that long-standing policy shielding a president from prosecution would apply to a president-elect.
But Smith didn’t have the power to end a case; a judge must dismiss the charges.
In a federal court filing, Smith conceded the case had to be dismissed before the president-elect’s inauguration but indicated he wanted to keep the door open for potential charges to be brought in the future, arguing Trump’s immunity is temporary.
Judge Chutkan had made clear she believed the prosecution of Trump was a legitimate pursuit in the interests of accountability and justice. Still, she dismissed the charges, though she did so “without prejudice.” In literal terms, that means the case could be revived at some point, though the five-year statute of limitations would expire during Trump’s term.
In practical terms, this pursuit of Trump is over.
