The criminal investigation into the Jan. 6 attack on the Capitol has expanded to examine the preparations for the rally that preceded the riot, as the Justice Department aims to determine the full extent of any conspiracy to stop Congress from certifying Joe Biden’s election victory, according to people familiar with the matter.
In the past two months, a federal grand jury in Washington has issued subpoena requests to some officials in former president Donald Trump’s orbit who assisted in planning, funding and executing the Jan. 6 rally, said the people familiar with the matter, who spoke on the condition of anonymity to discuss an ongoing investigation.
The development shows the degree to which the Justice Department investigation — which already involves more defendants than any other criminal prosecution in the nation’s history — has moved further beyond the storming of the Capitol to examine events preceding the attack.
The events of Jan. 6, 2021, are a legally fraught puzzle for federal investigators. Prosecutors and FBI agents must distinguish between constitutionally protected First Amendment activity, such as speech and assembly, and the alleged conspiracy to obstruct Congress or other potential crimes connected to fundraising and organizing leading up to Jan. 6.
The task is also complicated by the proximity of those two very different types of activities — speech and violence — that occurred within hours of each other and less than a mile apart.
A spokesman for the U.S. attorney’s office in Washington declined to comment.
On the morning of Jan. 6, thousands of people from all over the country gathered at the Ellipse, near the White House, to rally behind the false premise that Trump had won the 2020 presidential election. The outgoing president began speaking to the crowd around noon and called on attendees to march down Pennsylvania Avenue to the Capitol. By 12:30, hundreds of people began to gather near Congress. At approximately 1 p.m., the barricaded security perimeter of the Capitol complex was breached, and people flooded toward the building.
The mob stormed forward, with rioters striking officers, smashing windows, and pushing their way into legislative offices. Lawmakers fled to safety, delaying the official count of Biden’s electoral victory for hours until order could be restored. More than 100 police officers were injured, many of them seriously.
Prosecutors have charged more than 770 people with crimes, and the FBI is seeking information to identify hundreds of additional suspects, including a person who planted pipe bombs outside the Democratic and Republican party headquarters the night before.
Grand jury subpoenas are a legal mechanism used by prosecutors to gather information for a criminal investigation, and a subpoena in and of itself doesn’t mean any particular recipient is under investigation or likely to face charges. But the subpoena demands issued in recent weeks do indicate that the aperture of the investigation has widened, after Attorney General Merrick Garland pledged in a speech this Jan. 5, the day before the first anniversary of the attack on the Capitol, to follow the evidence wherever it leads.
The people familiar with the subpoena demands declined to identify the individuals who had received them or provide additional details.
Garland, who has faced pressure at times from Democrats and others to more aggressively investigate those close to Trump and the events that preceded the attack on Congress, said in his Jan. 5 speech that complex investigations like this one take time and are built from the bottom up.
“We follow the physical evidence. We follow the digital evidence. We follow the money,” Garland said. “But most important, we follow the facts — not an agenda or an assumption. The facts tell us where to go next.”
Prosecutors have long shown an interest in how those accused of violently breaching the Capitol paid for their travel to Washington and their lodging, and have frequently asked witnesses to explain who covered the cost of their buses and other modes of transportation. Many Jan. 6 defendants appear to have self-organized and paid their own way, or raised money online to pay for travel in groups as large as a 60-vehicle caravan, according to court papers.
But in the run-up to Jan. 6, pro-Trump groups behind the protests supported and promoted caravans, including March for Trump, which was largely organized by Women for America First, a group chaired by former Tea Party Express leader Amy Kremer; and Stop the Steal, organized by Ali Alexander. Both groups have denied wrongdoing.
In the early days of the Jan. 6 investigation, a few prosecutors in the D.C. U.S. attorney’s office wanted to use subpoenas and search warrants to gather evidence about rally organizers or speakers. But the FBI, Justice Department officials and Michael R. Sherwin — who was appointed the acting D.C. U.S. attorney during the Trump administration and continued to lead the probe after stepping down from that post — resisted the idea, people familiar with the matter have said, speaking on the condition of anonymity to discuss private deliberations. Authorities were concerned that taking such a step would be trampling on demonstrators’ First Amendment rights.
Instead, the Justice Department decided to first investigate those who were caught on video committing crimes and see whether investigators could connect those individuals to higher-level targets.
In an October arrest affidavit for a Virginia man and his daughter, the FBI said the father was provided a packing list by a protest organizer via a person “who coordinated convoys, communication plans, maps and packing lists” for Jan. 6 participants. The list included a telescoping metal police baton, body armor and helmets, the affidavit said, with the organizer explaining on social media that participants “were not looking for a fight but needed to be ready for one.”
The Justice Department’s interest in the details of planning the rally dovetails with previous subpoenas issued to some rally organizers by a House committee that is separately investigating Jan. 6. But the grand jury’s work involving the Justice Department subpoena requests is a criminal investigation, far different from lawmakers pressing for public accountability.
From the start, the Jan. 6 investigation has focused heavily on the actions of two extremist groups, the Oath Keepers and the Proud Boys. Proud Boys leaders charged with playing a key role in the attack appeared to have organized their own travel, renting a house in Washington and raising money online to pay for body armor, according to government court filings.
The Proud Boys’ leader at the time, Enrique Tarrio, was not in Washington on Jan. 6 but was arrested earlier this month on charges he conspired with other members of the group to attack Congress that day. Prosecutors said that arrest resulted from newly discovered evidence detailing his role. Tarrio has denied wrongdoing.
Authorities have said in court filings that around the time of Tarrio’s arrest, several additional search warrants were executed and additional information and devices were gathered. Prosecutors have indicated they may add charges or charge several additional defendants by May 20.
The federal conspiracy charges against Proud Boys members stemming from Jan. 6 are separate from the charges filed against Oath Keepers leader Stewart Rhodes and 10 other Oath Keepers or associates who were accused in January of seditious conspiracy, a historically rare charge that carries a maximum 20-year prison term. That indictment alleges that Rhodes plotted in late 2020 and early 2021 to prevent Biden from becoming president, guiding a months-long effort to unleash political violence that prosecutors say culminated in the Jan. 6 Capitol breach.
“Rhodes and certain co-conspirators … planned to stop the lawful transfer of presidential power by January 20, 2021, which included multiple ways to deploy force,” his indictment says.
Rhodes, 56, remains in jail awaiting trial. He has pleaded not guilty and denied any wrongdoing.
