WASHINGTON — Over the past year and a half, the Justice Department has approached former President Donald J. Trump to overturn the results of the 2020 election with a strategy of following the evidence that appeared to critics to border on paralysis — and that limited discussion of his role, even within the department.
Next came Cassidy Hutchinson.
The electrifying public testimony given last month before a House committee on Jan. 6 by Ms. Hutchinson, a former White House aide who witnessed many key moments, jolted senior Justice Department officials into discussing Mr. Trump more directly, sometimes in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco.
In conversations at the department the day after Ms. Hutchinson’s appearance, some of which included Ms. Monaco, officials spoke of the pressure the testimony created to examine Mr. Trump’s potential criminal guilt and whether he intended to break the law.
Ms. Hutchinson’s revelations appear to have opened the way to raising the most sensitive subject of all: Mr. Trump’s own actions before the attack.
Department officials said Ms. Hutchinson’s testimony did not change their investigative strategy of methodically working their way from lower-level actors to higher echelons of power. “The only pressure I feel, and the only pressure our prosecutors feel, is to do the right thing,” Mr. Garland said this spring.
But some of her explosive claims — that Mr. Trump knew some of his supporters at a Jan. 6, 2021 rally were armed, that he was desperate to join them as they marched on the Capitol, and that the White House’s top lawyer fears Mr. Trump’s behavior could lead to criminal charges — were largely new to them and grabbed their attention.
Open discussion of Mr. Trump and his behavior was rare except as a motivation for the actions of others, a subtle but significant shift that was underway even before Ms. Hutchinson’s testimony.
The testimony of Cassidy Hutchinson, a former White House aide, may have opened the way for the Justice Department to reveal Mr. Trump’s actions before the January 6 attack. Credit… Haiyun Jiang/The New York Times
A small team of prosecutors at the U.S. attorney’s office in Washington has stepped up its investigation into a scheme to install fake state voters led by lawyers who have been in frequent contact with Mr. Trump. And the Justice Department’s watchdog is investigating efforts by Jeffrey Clark, a former department official who discussed the plan with Mr. Trump, to overturn the election results.
A spate of recent subpoenas related to the voter probe and raids related to the inspector general’s investigation into Mr. Clark — which were carried out with the knowledge of senior department officials — suggest those investigations are accelerating. At the very least, these moves indicate that prosecutors are closing in on the former president.
The Justice Department does not publicly discuss details of ongoing investigations or where they might lead, so as not to prejudice criminal proceedings or suggest that people are guilty before they are charged with a crime.
The policy, longstanding but more vigorously enforced recently, has angered critics, including President Biden, who accuses Mr. Garland of being too slow and cautious. A congressional committee looking into the attack, which resumed public hearings this week, used testimony, particularly that of Ms. Hutchinson, to push the department to act more aggressively.
Congresswoman Liz Cheney, Republican of Wyoming and vice chairwoman of the committee, pressed her colleagues to refer the criminal division in hopes of forcing Mr. Garland.
On Monday, Andrew Weissman, the senior prosecutor in the special counsel’s investigation into Russian interference in the 2016 election, sharply criticized Mr. Garland’s “bottom-up” approach to the investigation in a guest essay in The New York Times, saying the department instead, it should work from Mr. Trump’s Speech to Ellipse supporters outside.
But Mr. Garland’s message has always been clear: The Justice Department investigates crimes, not people.
Earlier this year, in a speech to mark the first anniversary of the riot, Mr Garland acknowledged and dismissed the criticism. “We understand there are questions about how long the investigation will take and exactly what we are doing,” he said.
His response: “As much and as much as is necessary to do justice – according to the facts and the law.”
Mr. Garland’s stoicism belies the fact that Mr. Trump, still a dominant force in Republican politics, casts a long shadow over the department’s investigation a year and a half after his supporters rampaged through the Capitol.
Investigators initially focused on the rioters who attacked police, stormed the building and threatened the media. But as evidence mounted that members of far-right extremist groups were involved in a riot plot, a tense internal debate erupted over how to widen the pool of possible defendants.
Some prosecutors wanted to compile lists of their colleagues and see what they might know, according to two people familiar with the plan. Senior FBI and Justice Department officials deposed him. It’s unconstitutional to investigate a person based solely on their association with a group, and it goes against the department’s policy that a person’s actions can only be scrutinized if there is evidence linking them to a crime, they argued.
On the day he took office, March 11, 2021, Mr. Garland attended a detailed briefing on the status of the investigation by Michael R. Sherwin, the head of the U.S. Attorney’s Office in Washington, who was overseeing the investigation. Mr. Sherwin presented Mr. Garland with a strategy that involved four teams of prosecutors, labeled A through D: “Team B,” already staffed by 15 lawyers, had begun investigating “influential individuals and officials” associated with the attack, according to a copy of the memo shared with The New York Times.
Mr. Garland listened intently and thanked Mr. Sherwin for his hard work under difficult circumstances, according to people familiar with the exchange.
Mr. Sherwin, who was appointed by Mr. Trump, then appeared on “60 Minutes” and suggested the investigation should target the highest levels of government – naming names. “Maybe the president is to blame for these actions,” he said, infuriating the department’s new leadership.
Within six weeks, he was back home in Miami and Mr. Garland’s team took over the job.
Mr. Garland’s appointees are grappling with many of the same difficult questions about the scope of the investigation as their predecessors. They were unsure whether they could prove that nonviolent activity to thwart a peaceful transfer of power violated criminal law, according to people familiar with the investigation.
Those concerns appear to have faded after prosecutors began investigating the alternative election plan and Mr. Clark’s actions.
While there has never been a ban, formal or otherwise, against discussing Mr. Trump, senior department officials then and now have made it clear that prosecutors must focus on the trail of evidence before them, not a road map. , leading to Mr. Trump.
Until recently, that involved narrowly steering the discussion to the details of the specific cases being worked out — insurgents, mid-level leaders or Trump associates involved in the state voter scheme, according to current and former officials — not to the speculative.
If career prosecutors uncover evidence linking Mr. Trump to the crimes they are investigating, new procedural hurdles make it more difficult for them to investigate his actions. In 2016, rank-and-file FBI agents did not need clearance to investigate the actions of Hillary Clinton and Mr. Trump. But Attorney General William P. Barr issued a memo requiring the attorney general, through the deputy attorney general, to approve such a move, which could put additional pressure on Ms. Monaco.
Even without that clearance, Ms. Monaco runs the day-to-day operations of the department and oversees all prosecutions, including the January 6 investigation. The team that reports to her has repeatedly pressed the House committee for transcripts of hundreds of interviews it has conducted, arguing that the group’s reluctance to do so before the hearings are over is hampering the department’s work.
Deputy Attorney General Lisa O. Monaco has been advised of major personnel changes in the department’s investigation since Jan. 6. Credit… Tom Brenner for The New York Times
Ms. Monaco, whose work as a prosecutor in the government’s Enron case in the early 2000s earned her rising star status, sips her coffee from a mug that says “Boring Is My Brand.” She has often expressed admiration for her first boss in government — Janet Reno, Bill Clinton’s attorney general — who resisted pressure from the White House and members of her own party to appoint a special counsel to investigate the Whitewater scandal.
She closely monitors the investigation, mostly through her assistants who communicate with the investigators. Major developments — such as the Hutchinson revelations — are discussed at higher-level meetings, according to people familiar with the process.
Ms. Monaco does not direct hiring decisions, but she has been consulted on major moves, including the hiring last fall of a little-known federal prosecutor from Maryland, Thomas P. Windom, to bring together some of the disparate strands of the election circuit.
If Ms. Monaco was adamant about not discussing even seemingly basic details of the investigation — such as Mr. Windom’s hiring — she was more forthcoming about the challenges of conducting an investigation that is “among the most .
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