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After a Wave of Subpoenas, Notes of Caution About the Jan. 6 Investigation

WASHINGTON — From outside the Justice Department’s walls, the extensive investigation into attempts to undo the outcome of the 2020 election appears to be only accelerating, with prosecutors last week subpoenaing about 40 former President Donald J. Trump employees and telephones. seized at least two of his assistants.

But that flurry of activity should not be confused with a signal that Mr Trump will soon be prosecuted for his attempts to remain in office or the impact those actions had on the January 6, 2021 attack on the Capitol, according to two people who are familiar with the research. They noted that prosecutors are still going through evidence and are far from determining whether charges could be brought against the former president.

The warnings appear to reflect the complexity of the investigation, the methodical pace at which the Justice Department is doing its job, and the politically explosive nature of an investigation involving a former president and suspected presidential candidate.

They also contrast signals coming from the narrower investigation into Mr Trump’s handling of government documents and sensitive intelligence information, including possible obstruction charges.

In a search warrant and in court files in the documents case, a team of prosecutors from the Justice Department’s National Security Division provided evidence that Mr. Trump not only left the White House with thousands of pages of sensitive material, but that he tried to prevent the government from taking them back from Mar-a-Lago, his Florida home and private club.

The evidence set forth by the department in the documents case is so extensive that even some prominent figures of Republican administrations such as William P. Barr, who served as attorney general under Mr. Trump, and John Yoo, a top State Department official. Justices under President George W. Bush, have said publicly that Mr. Trump has likely obstructed justice.

The documents case is now embroiled in a legal battle between Mr. Trump and the Justice Department over whether and how an independent arbitrator, known as a special master, will review documents seized by FBI agents during the prosecution’s investigation. court-authorized search of Mar-a-Lago on Aug. 8.

Despite that legal hurdle and weeks of investigative work yet to be done, the department could consider possible charges against Mr. Trump in the documents case much earlier than the Jan. 6 investigation, people familiar with the investigations said.

Even if the recent wave of subpoenas provides compelling information that advances the Jan. 6 investigation, Attorney General Merrick B. Garland is unlikely to be able to weigh criminal charges against Mr. Trump in the Jan. 6 investigation. or in the document search for the midterm elections. With one case stuck in the courts and investigators still collecting and evaluating vast amounts of information in the other, such a decision may not even happen this year.

The Justice Department declined to comment.

In the documents case, prosecutors have formulated a clear theory in their court files about what laws the former president may have broken.

The administration has raised the possibility that Mr Trump may have violated the Espionage Act by bringing sensitive national security information to his private club after he left the White House. It said he may have violated a law prohibiting mishandling of sensitive national security data, some of which was discovered in an unsecured storage facility. And it claimed he may have obstructed the federal investigation, with one of its own attorneys declaring in June that all the documents the government sought had been returned when they were not.

The documents investigation appeared to be gaining momentum in early August, when the Justice Department seized thousands of pages of presidential data from Mr Trump’s home, including additional batches of material marked as highly classified. An edited version of the government’s affidavit said it had likely reasons to believe it would find “evidence of obstruction” at Mar-a-Lago.

But Judge Aileen M. Cannon, a federal judge in Florida, put the investigation on hold this month when she granted Mr Trump’s request for a special master to assess the recently seized materials. The court must now settle key issues, including who will serve as special captain and whether the FBI and other intelligence agencies can review 103 key documents for potential damage to national security while that arbitrator completes his or her work.

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While the Justice Department has indicated it is open to any of Mr. Trump’s choices to serve as special master, it appears poised to appeal Judge Cannon’s ruling, a move that could lead to continued delays and possibly delay the investigation even more.

On Tuesday, the Justice Department opposed a filing by a Trump legal team reiterating the former president that the special master review must include about 100 documents marked as classified, meaning FBI agents and prosecutors won’t report them. any criminal investigation purpose until the master’s work is completed.

The Justice Department has asked Judge Cannon to keep the Special Captain’s classification marking documents so that the investigation into them can continue, in part because it argued that a separate examination of each national security risk was inextricably linked to the investigation of the FBI.

Even without the main special case, the department has further investigative steps to complete in the documents case. It may be necessary to determine whether Mr. Trump still has government records, which the National Archives told Congress this week is a possibility.

The department has indicated that it wants to hear more witnesses. And it will have to decide how to deal with Trump lawyers who may have misled or lied to prosecutors. The intelligence community has yet to complete its assessment of the national security risks of Mr. Trump who keeps top-secret documents in an environment without proper security. And it’s not clear why Mr. Trump kept the documents.

If prosecutors ultimately decide to prosecute Mr. Trump in the documents case, then Mr. Garland must decide whether to follow that recommendation.

But if the documents case looks on track to reach a decision point on prosecution, the Jan. 6 investigation doesn’t have that end point in sight yet.

The recent wave of subpoenas appears to seek to gather more information on multiple lines of inquiry linked to Mr Trump’s efforts to remain in power. They include the formation of pro-Trump voters from states won by Joseph R. Biden Jr.; plans to use the meeting that preceded the Capitol attack to prevent Congress from ratifying Biden’s Electoral College victory; and the fundraising vehicle operations that Mr. Trump has relied on to pay his legal bills since he left office.

The new information could help researchers at the US law firm in Washington determine where these parts might overlap and, tellingly, “whether Trump or others are the connective tissues joining these groups,” said Barbara McQuade, a former federal officer. prosecutor and law professor at the University of Washington. the University of Michigan.

That’s not to say prosecutors aren’t getting close to Trump’s inner circle. They have charged several people with incendiary conspiracy, including members of a far-right extremist group that provided security to Trump associates on the day of the January 6 rally. They are investigating Jeffrey Clark, a Justice Department official, for his efforts to help Mr. Trump promote the lie that the election was full of fraud, and John Eastman, a lawyer who was one of the main proponents of the plan to slates of Trump voters from swing states won by Mr Biden.

But as of now, the subpoenas issued in the Jan. 6 investigation do not appear to refer to crimes that could have stemmed from pressure to change the election results or identify Mr. Trump — who the investigation has repeatedly labeled as politically motivated. and unfounded – as a possible defendant.

Charlie Savage reporting contributed.