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Opinion: What’s at risk in the murky Capitol attack investigation

These two ideals — that you are innocent until proven guilty, and that you have adequate time to prove that innocence — are the best way we know to ensure that justice is served.

But when these ideals are applied in the extreme, it can result not only in the denial of justice but in a significant loss of confidence that the American legal system delivers justice at all.

In January, the US Capitol was overrun by what I believe were domestic terrorists hellbent on overturning a free and fair election. Worse yet, they tried to strike a dagger in the heart of American democracy.

Nine months have passed since these crimes were perpetrated, and yet the country is still waiting for the leaders of this attack to be charged with the crime that was committed — sedition. The Department of Justice and the FBI have done heroic work identifying many of those in the mob, arresting and bringing obstruction, conspiracy and weapons charges against hundreds. I have no doubt those charged will face trial, and that many will do time in prison. I do believe there is ample reason for the DOJ to take its time, and that it shouldn’t be judged on day-to-day progress.
But just as justice is blind, the American people cannot be blind to how the system is working. The FBI and the Justice Department couldn’t be more opaque concerning the progress of the investigation, and that lack of information has many concluding that nothing will happen.
Last week, Attorney General Merrick Garland had to defend the DOJ against claims that they aren’t prosecuting aggressively enough, during which he reiterated that prosecutors have a policy of divulging as few details as possible.
The information made available to our citizens has been next to nothing, and what has been made available has been so dense the public largely hasn’t paid attention. The Senate released a comprehensive, nearly 400-page report earlier this month that laid out in detail what happened that day. But it was such a long and impenetrable review that it’s already getting lost in public discourse — not to mention that the report, which detailed extensive criminal behavior, didn’t generate a single criminal referral.
On the House side, the bipartisan select committee on January 6 has issued a series of subpoenas to the highest-ranking people in the Trump orbit, minus the former president himself. Those subpoenas, at the direction of Trump, are being resisted by at least one Trump loyalist, Steve Bannon, on the dubious claim of executive privilege.
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As the deadline passed, the House committee could only issue strongly worded condemnation and said they are exploring ways to enforce the subpoenas. Despite knowing the date of the deadline and the likely outcome, the select committee had no apparent strategy ready for dealing with this resistance, and certainly no strategy for letting the public know what was happening. They should have been ready with an aggressive media push explaining exactly how they would compel people to comply with a subpoena.

The reality is that these subpoenas will likely end up in court and could languish for years just like the congressional subpoenas in the Trump impeachment trial.

Many Americans — including former federal prosecutors — are demanding to know who did what, and who is going to be held responsible for this crime against the state. They want to know how far up the chain this went, including what the former president’s role was in the attack.
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As another legal maxim states, justice delayed is no justice at all. And many Americans who are tired of waiting to see visible progress are already losing confidence in their nation’s legal system, assuming no one will be held accountable. My Twitter feed is littered every day with Americans criticizing Attorney General Garland, with some calling for his removal. At a minimum, they no longer believe the courts can secure appropriate justice from those with money and influence.

That loss of confidence is just as dangerous as a hamstrung judicial process, because it literally undermines the very foundation of our legal system.

What can law enforcement do to address this problem? It’s simple: Tell us more. Keep the American people up to date on the progress of the investigation in a transparent, accessible manner so that we can all believe that justice will be delivered in the end. Congress shouldn’t wring its hands; it should enforce the subpoenas with every accessible weapon, including arrest for contempt of Congress.

Americans need and deserve to know that the people who tried to overthrow our democracy will be held accountable — accountable for trying to dismantle and destroy the institution that makes us great. And that applies to awareness of how the former president may be implicated.

Today, many believe that will never happen because months have passed with tepid progress and little transparency. We need to know more, not just because we are curious, but to maintain faith in the justice system that has protected our democracy for more than two centuries.

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