Merrick Garland, please call your office.

The House Select Committee on January 6 has made impressive progress in its investigation of the insurrection at the Capitol on that infamous date. Its inquiries appear to be wide-ranging and highly organized. Despite inevitable attempts at stonewalling by Donald Trump and his putative co-conspirators, the results have been eye-opening. While the Committee has yet to present any witnesses in public hearings, that chapter is promised for 2022.

Even before holding public hearings, however, the Committee has released fascinating portions of the documents and electronic materials it has obtained. These materials have shown, with ever increasing clarity, that January 6 was far from an event that “just happened.” Rather, it was the climax of sprawling but determined efforts to overturn the election of Joe Biden. In hindsight, some of those efforts in service of the Big Lie were so inept or far-fetched that they appear almost operatically comical. There was, however, nothing remotely comical about their intent. And if any of the key actors–Vice-President Mike Pence, Department of Justice officials, or election officials in several states, had buckled under the severe pressure Trump placed on them, his attempted coup might have succeeded.

The public hearings in 2022 may prove to be riveting television fare. Perhaps they will rival the gripping tale of John Dean or Alexander Butterfield’s disclosure of the White House tapes, before the Ervin Committee in 1973. But the January 6 Committee’s authority is limited: it cannot prosecute anyone. It may refer individuals to the Department of Justice for prosecution, but valuable time will have been lost and even then, on the evidence to date, the will of the Biden administration to prosecute may also be uncertain.

The DOJ agreed to the Congressional request to prosecute Steve Bannon for contempt of Congress for refusing to comply with a subpoena, and it may soon do the same in the case of Mark Meadows and possibly others. But such prosecutions are time consuming and it is not clear that they will survive if the Republicans retake the House in 2022 as seems likely at the moment. In any case, they may be little more than preliminaries to the main event—prosecution of those principally involved in the attempt to overturn the 2020 election.

For its part, DOJ has thus far has not pursued anyone above the level of the president’s hapless pawns who brought havoc to the grounds of the Capitol on January 6. The Department’s apparent lack of interest in going higher has given rise to puzzlement, frustration and dismay on the part of many observers, including the writer. Why has Attorney General Merrick Garland appeared to be missing in inaction?

On Tuesday, a defense of the Department’s seeming lassitude came from a surprising source. Writing in the Washington Post, Jennifer Rubin began by noting accurately that “Multiple pieces of evidence have emerged pointing to a deliberate effort to overthrow our democracy.” Oddly, however, she went on to assert that:

[T]he committee is not compiling a criminal case, which requires evidence that is admissible (not hearsay) and beyond a reasonable doubt. The Justice Department might decide this amounts to a criminal case, but demands that Justice officials proceed now are unserious and premature. The committee is acting as the investigative team; Justice Department lawyers will need to see what they’ve found before making an informed decision on prosecution.

I have often admired the work of Ms. Rubin, but in this case I think she is simply wrong. To be sure, the kind of evidence produced by a congressional committee does not necessarily meet the standards required for a criminal prosecution, but that is precisely why DOJ should be at work now—before records disappear, witnesses’ stories are adjusted and memories fade. Moreover, subpoenas to appear before a grand jury are far more difficult to avoid or ignore than the Congressional variety. In short, pleas for action by DOJ are by no means unserious or premature.

As a historical matter, it is worth noting that in 1973 the special prosecutor for Watergate, Archibald Cox, did not wait for the Ervin Committee to finish its work before aggressively pursuing his own investigation. Thus, John Ehrlichman, Bob Haldeman and others appeared contemporaneously before a grand jury. Then, as the Committee’s work progressed, I recall rather vividly that Cox quickly took advantage of it. After the existence of the Oval Office tapes was disclosed in Butterfield’s testimony before the Committee on July 14, Cox immediately subpoenaed them. And on July 26, I delivered a letter to Judge John Sirica advising him that the White House would decline to turn over the tapes (an event memorialized in a rather unflattering picture on the front page of the New York Times).

Garland no doubt has a legitimate and understandable reluctance to mount a prosecution that appears political. That, however, does not mean that the “Stop the Steal” conspirators should all be given “Get Out of Jail Free” cards. My disappointment with Garland may be heightened by the fact that, when he was named Attorney General, he was my favorite of Biden’s cabinet appointees. Among other things, I was impressed that Garland spoke warmly of Edward Levi who had been appointed Attorney General by President Gerald Ford. I have always admired Levi for the way he repaired the reputation of the Justice Department which, as now, had become notably tattered.

While Garland’s performance as Attorney General may be problematic, his position is admittedly more difficult than Levi’s was. When Levi took office, the Watergate prosecutions were firmly in the hands of special prosecutors and had been substantially concluded; hence Levi could focus on other matters. While Garland does not enjoy such a luxury, his best course now may be to appoint a special counsel. That is the action urged by Jennifer Rubin’s fellow-Washington Post writer, Max Boot. As Boot suggested, such a course will not be an easy one, but it may be essential:

There are real risks — including more violence by Trump supporters — in the Justice Department investigating and potentially prosecuting the former president. But there are even greater risks in allowing him to get away with his assault on democracy without having suffered any consequences worse than the loss of his Twitter account.