There are many questions that remain unanswered, and there are areas where the public record is not as complete as it should. These questions include whether the department will conduct a review of White House officials (including former President Donald Trump) or if it will just wait to see if current investigations lead to a potentially long, risky, and unnecessary slog. This ignores the fact there is enough evidence to warrant an investigation.
The public should also know whether or not the department is investigating Republican politicians potential connections to the attack. This information, regardless of how it ends, is important, given the obvious sensitivities. This doesn't have to be reckless or volatile, as the former FBI Director James Comey did about Hillary Clinton. A simple acknowledgment without any hint that any conclusions have been reached would suffice. Clearing Republican legislators would be as valuable as inculpating them.
Transparency is a fundamental good in a unique situation like this, where political partisans do everything possible to destort what actually happened. It will help build Americans' trust in the outcome at all levels of policy, reform, and prosecution.
Garland spends a lot of time talking about the importance of the department promoting the rule of law. But the country can't just take his word for it.
Others have convincingly shown that the FBI hasn't been forthcoming enough about its preparations for Jan. 6. Although there appears to be sufficient information for the bureau to do more than it needed to prepare, Director Christopher Wray has not been able to answer any pressing questions. It is even more frustrating and difficult for Wray to be evasive because Garland was asked about the FBI's failure to respond to repeated inquiries from Congress during Trump's administration. He promised that the department would do better.
The DOJ should also answer questions about its current investigative strategy and prosecutorial strategy. Also, the DOJ should address practical matters such as what insights it has already gleaned about the nature and threat of right-wing extremism. Garland, along with other senior officials, declined to answer reporters about whether sedition charges are being considered by the department. However, he said that he was not pursuing this theory. There are many arguments for this positionlegal (it is rare and therefore risky), practical(it will not increase criminal exposure due to the number of other charges), and political (it could cause polarization in the investigation) but these are all things the department should be open about.
It is common to hear that prosecutors should not disclose sensitive or non-public information to the public. Both the D.C.s federal court rules and department regulations prohibit information from being released if it could prejudice ongoing proceedings. These rules allow the department to make high-level disclosures to public without being tied to any specific case or group of cases. The department policy acknowledges that sometimes it is necessary to break from the standard nondisclosure rules when the community is concerned about a particular case or group of cases, or where the release of information is required to protect public safety.
The department's nondisclosure policy is also less rigid than the public may think. Sometimes, speaking indictments are used by the prosecutor to reveal information that is not required to be included in a charge document. Senior officials and prosecutor sometimes give background briefings to reporters when it is in the public's best interest to share information that will not adversely impact a specific case. This was something I did as a line prosecution with the blessing of senior officials from the Department of Public Affairs. Senior officials and colleagues did the same thing, even though the public value was uncertain. It is not even possible for reporters to leak information about ongoing sensitive matters that may or might not be sanctioned.
Garlands' tenure has shown that the department is willing to communicate with the media on important public concerns when necessary. Take Garlands' recent meeting with leaders of major news outlets following the revelations about Trump's subpoenas to get material related to reporters.
Practically, being more open might help to reduce some of the worries on the Hill and among observers that Garland is not the right person for the position. There is another reason that the rule of the law is not the only value or objective for a functioning democracy. Transparency in the way the government deals with such a complicated, politically grave criminal episode can boost public confidence that both there will be strong and appropriate forms for accountability and that law enforcement has sufficient capacity to prevent further attacks.