Attorney General Merrick Garland is reflected in a technicians monitor as he speaks at the Department of Justice in Washington, D.C., January 5, 2022, in advance of the first anniversary of the attack on the US Capitol.(Carolyn Kaster / POOL / AFP via Getty Images)
On January 6, 2021, precisely two weeks before he was to take office, Joe Biden planned to hold a press conference announcing Merrick Garland as his pick for attorney general. That press conference had to be canceled, because supporters of Donald Trump attempted to stage a coup d’état. They failed, but the attempt radically changed Garland’s job. Instead of merely restoring honor and stability to a Department of Justice defiled by Trump and Bill Barr, Garland would also be responsible for prosecuting the insurrectionists who attacked our Capitol.
One year later, Attorney General Garland delivered a televised speech updating the country on the state of that prosecution, which has become one of the largest investigations in American history. Garland reported that over 725 people have been arrested and charged in connection with the attack. He said that the DOJ was still looking at evidence and accepting help from the public to identify additional perpetrators, and he vowed that he would prosecute people “at every level” who are found to be “criminally responsible” for January 6, including those who did not physically breach the Capitol.
He also pleaded for patience. So far, only 71 people, roughly 10 percent of those charged, have been sentenced in connection with the attack, and most of them have been charged with minuscule crimes and received light sentences. Another 165 people have pleaded guilty, and most are still awaiting punishment. And 220 people have been charged with assaulting an officer, with three of them having been convicted and sentenced to three years or more of prison. Garland also announced that 17 people have been charged with conspiracy to commit obstruction of Congress, which is the charge he seems to be reserving for those most directly involved in the plans to stop Congress from certifying the results of the election.
Garland contends that these numbers—which at least some critics find underwhelming—are just the beginning. He says he’s executing the age-old investigative strategy of starting small and ramping up to the more serious offenders.
If that’s true, if Garland is building toward more serious charges for bigger players—charges based on information gleaned from people who cooperated with the government in exchange for leniency—his investigation would look something like it looks like right now. Unfortunately, if he is planning on charging the low-hanging fruit of weekend warriors and QAnon clergy and calling it a day, his investigation would also look something like it does now. Both scenarios are possible at this point, though the implications of each lead the country down radically different paths in the search for justice.
If Garland is content to prosecute all but the most violent domestic insurrectionists with minor trespassing violations, he will essentially treat a plot to overthrow the government as a political rally which got out of hand. That creates a culture of permissiveness for the next coup attempt, as the Trumpian forces will know that even if they fail, Democrats will only slap them on the wrists. If instead he brings serious charges and lengthy jail times against the coup participants, and the politicians who aided and abetted that violence, he will send a message that plots to overthrow the government will be treated at least as seriously as crack-cocaine dealers in Northeast D.C.
Garland promises to go where the facts take him, but, thus far at least, he seems to be looking only at those facts that lead him away from the powerful. In his speech, Garland recapped the attack on the Capitol, but he started the story at the point when the crowd descended on the building. That’s a telling choice. Garland didn’t mention the rally before the attack, where people like Mo Brooks, Donald Trump Jr., and eventually Trump himself spoke to the crowd. Moreover, Garland hasn’t yet charged anybody with sedition and treason, and his speech gave no indication that such charges are coming.
What this means is that Garland may be in the process of pulling a Robert Mueller. He’s talking like he understands the stakes, but he’s going to end up acting like America’s greatest mall cop. Instead of aggressively prosecuting, he’s going to hide behind procedure and keep treating people who broke into the Capitol in an attempt to overturn the election like little more than street toughs whose antisocial behavior will earn them a lifetime ban from Sbarro’s.
See, from where I sit, every one of the people who showed up to the “Stop the Steal” rally, whose express plan was to prevent Congress from carrying out its duty to certify the outcome of the presidential election, should be under investigation for obstruction of Congress, not just the 17 or so Garland thinks acted really badly. Everybody at that rally was told, repeatedly by speakers, about the plan to forcibly change the results of the election. Then they were told to march to the Capitol. Many of them did, broke into the place, and proceeded to hunt for the officials they planned to “stop.” Every person who marched inside the Capitol was, at a minimum, prepared to use threats and intimidation to prevent the Vice President and Congress from certifying the results of the election. They should have all been charged like it, instead of being treated like they were merely in the wrong place at the wrong time.
Then again, it’s possible that Garland’s approach is the correct one. It’s possible that the Department of Justice’s charging decisions merely fit the evidence they have. Maybe all these people really weren’t part of a criminal conspiracy. Maybe the 56 people punished for “parading, demonstrating, or picketing” inside the Capitol just wanted to exchange ideas with Alexandria Ocasio-Cortez and would have let her walk away free and unharmed had they found her. Maybe “hang Mike Pence” was just a “cheer” and the Secret Service overreacted by considering it a threat—and maybe I really do have a rich uncle in Nigeria.
Maybe Garland is the proverbial tortoise whose slow but steady progress eventually wins the day. Or maybe he’s just another great white liberal hope who is about to be roadkill under the Republican rush to install permanent one-party rule.
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So, for now, patience really may be the only option. The people who are disappointed with Garland’s prosecutorial choices thus far are right, but the people who say he needs more time to build a case are also right. Two things can be true at the same time, and there’s no objective reason to trust, or distrust, his process. Garland’s record on January 6 is simply: incomplete.
History tells us the failed coups that are not punished are only practice for the next time around. One way or another, Garland will go down as one of the most consequential attorneys general in the history of the republic. No other AG has had to deal with the fallout of a failed attempted coup. No other AG has had to deal with the fallout of an attempted coup that was supported by members of the previous government and sitting members of Congress. Garland will be the AG who finally held Donald Trump and his forces accountable for their plans to violently overthrow the government, or he’ll be the guy who let them get away with it. He’ll be one of our greatest AGs, or one of our last.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and a columnist. He is also an Alfred Knobler Fellow at the Type Media Center. He is the author of two books: the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution and Bad Law: Ten Popular Laws That Are Ruining America, both published by The New Press. You can subscribe to his Nation newsletter “Elie v. U.S.” here.