Attorney General Merrick Garland is under pressure to investigate Donald Trump for his role in the Jan. 6 insurrection, but a move against the former president could complicate many of the hundreds of other criminal cases related to the storming of the Capitol.
Even if investigations into Trump and his inner circle are expanded — a slew of grand jury subpoenas and search warrants in recent weeks suggest prosecutors are circling his allies — the momentous decision about whether to charge Trump with a crime is months away, if not longer.
But if the Department of Justice starts assertively mounting a criminal investigation of Trump, it could create delays in other Jan. 6-related trials because defense attorneys for hundreds of defendants could demand access to much of the evidence against Trump as part of the discovery process.
“It’s messy. It’s a headache. And it’s a huge undertaking,” said Pace University law professor Bennett Gershman, a leading expert on so-called discovery practices in criminal cases.
Under longstanding Supreme Court precedents, court rules and Justice Department policies, defense attorneys for current Jan. 6 defendants could demand almost real-time access to any evidence gathered in a probe of Trump’s actions on and around Jan. 6, arguing that his alleged incitement of the crowd that day — both in person and online — undercuts the culpability of those already charged.
“It seems to me if you’re going through the Trump stuff or [Rudy] Giuliani stuff” and you find something useful to existing defendants “you’ve got to turn it over,” Gershman said. “They would have to turn over information to them that is colorably favorable or would be something a defense attorney would want to see.”
Prosecutors rarely concede in court that any evidence actually amounts to proof of a defendant’s innocence or is truly helpful to their defense, but typically they try to head off disputes over such issues by erring on the side of disclosing information that could be viewed as exculpatory.
A video is displayed by the committee that claims to shows Proud Boys in front of the Capitol on Jan. 6, 2021, as the House select committee holds hearing on June 9, 2022.