How rightwing groups used junk science to get an abortion case before the US supreme court | Abortion | The Guardian

How rightwing groups used junk science to get an abortion case before the US supreme court

"Anti-abortion researchers ‘exaggerate’ and ‘obfuscate’ in their scientific papers – but by the time they’re published, it’s too late

Jessica Glenza

A patient prepares to take mifepristone at a clinic in Kansas City, Kansas, on 12 October 2022. Photograph: Charlie Riedel/AP

A pharmacy professor who strenuously avoids heated political discussions is an unlikely candidate to get involved in a fight over abortion, particularly one as high stakes as a case now before the supreme court: the US Food and Drug Administration (FDA) v the Alliance for Hippocratic Medicine (AHM).

But when the professor Chris Adkins of South University in Georgia emailed his concerns about an academic article to the editors of Health Services Research and Managerial Epidemiology, that’s exactly what happened.

The article had been published by an anti-abortion research institute and, perhaps unsurprisingly, concluded that medication abortion was far less safe than the accepted scientific consensus – one established by more than 100 peer-reviewed studies across multiple continents and two decades of real-world use.

“The way this study used this situation to exaggerate, and I’ll say obfuscate, the truth behind mifepristone’s safety profile is where I thought: ‘I’ll reach out to the journal and say I’ve got these issues,’” said Adkins, referring to the drug targeted by researchers. Mifepristone is one half of a two-pill regimen that treats miscarriage and ends early pregnancy, and its future hangs in the balance of the supreme court case, to be heard this week.

“I honestly didn’t think I would be the first to do that,” said Adkins.

Within a couple days of Adkins’ complaint, the global academic publisher Sage, which publishes the journal, began investigating. Within weeks, Sage retracted not one but three papers by the anti-abortion researchers.

Adkins’ concerns go to the heart of a problem that has bedeviled scientists for at least a decade: the judicial system’s repeated adoption of poor-quality evidence to justify litigation and legislation to restrict abortion. Often that evidence is produced by the anti-abortion movement itself.

FDA v AHM is scheduled for oral arguments on Tuesday. The suit, brought by anti-abortion doctors, seeks to force the FDA to reverse decisions that relaxed restrictions on prescribing mifepristone. The Biden administration and the medication’s manufacturer argue the doctors have no right to sue in the first place.

The study Adkins complained about is central to the doctors’ case, and was cited heavily by a federal district court in Amarillo, Texas, that kicked off the government’s appeal when it found in favor of anti-abortion doctors.

How the supreme court decides the case could have profound implications. A finding in favor of anti-abortion doctors could reshape abortion access again in the US, including in Democratic-led states that might have considered themselves immune from restrictions. It also holds the potential to upend the FDA’s authority, which could call into question the future of all kinds of controversial drugs, from contraception to vaccines to treatments for HIV.

Researchers are skeptical that Sage’s retractions alone will make a difference in the court’s decision.

“It’s frustrating, it’s depressing, it’s maddening and quite honestly it’s frightening,” said the obstetrician and gynecologist Daniel Grossman of the University of California at San Francisco (UCSF).

Grossman is also a professor and the director of Advancing New Standards in Reproductive Health, one of the nation’s foremost reproductive health research groups. His own work has been taken out of context by attorneys arguing to restrict abortion in court briefs, he said, and he has published pieces to criticize the poor quality of evidence produced by anti-abortion doctors and researchers.

“Judges don’t have expertise to be able to review the science, just like I don’t have all the expertise to understand all the legal maneuvering that’s happening in this case,” said Grossman.

The anti-abortion movement pours money into research groups such as the Charlotte Lozier Institute, whose raison d’être is to produce articles its activists can cite in litigation, legislation and promotional materials. The institute was founded in 2011 by one of the nation’s most powerful anti-abortion advocacy groups, Susan B Anthony Pro-life America, and its researchers are responsible for the three now-retracted articles flagged by Adkins.

Mary Ziegler, a professor of law at the University of California at Davis and a leading legal historian of the abortion debate, says the movement has spent decades investing in its own research arm. Campaigners started fringe publications, such as the journal Issues in Law and Medicine, a peer-reviewed publication produced by the the National Legal Center for the Medically Dependent and Disabled. That organization was founded by James Bopp, a lawyer who has campaigned against abortion for decades, and is now the lead council of the National Right to Life.

The journal’s current editor, Barry Bostrom, is an attorney who fought abortion for decades. Bostrom has served as director and general counsel of Indiana Right to Life, and at least once represented National Right to Life before the Federal Election Commission in 2009, alongside Bopp.

But “that’s not the business model anymore”, Ziegler said. The movement is no longer limiting anti-abortion research to its own journals.

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Now, anti-abortion researchers also seek to place their research in journals published by academic publishers such as Sage or, in another example, the British Journal of Psychiatry, published by the Royal College of Psychiatrists.

In the latter example, an American researcher found that abortion accounts for a substantial increase of risk in adverse mental health outcomes. However, the researcher’s analysis depended in part on a “debunked” paper, overestimated risk and did not follow published guidelines for the kind of analysis performed.

Researchers have repeatedly raised concerns to the British Journal of Psychiatry and even recently published an article in the British Medical Journal (BMJ) calling for a retraction. So far, they have been rebuffed by British psychiatrists.

In spite of their efforts, the researcher’s work has been repeatedly cited as evidence of the harms of abortion before state courts and federal courts. In 2022, the researchers’ work was cited in a brief to the supreme court in Dobbs v Jackson Women’s Health Organization, the case that ended nearly 50 years of constitutional protection for abortion. The anti-abortion movement has also used the researcher as an expert witness in court.

But fighting poor-quality evidence can feel like a losing battle. Responding in a well-respected journal can be a lengthy process that doesn’t always pay off.

Ushma Upadhyay, a public health social scientist trained in demography, and a professor in the department of obstetrics and gynecology at UCSF, contributed to both the BMJ article that failed to secure a retraction, and co-authored an article in the journal Contraception with Adkins on the flaws in the now-retracted Sage articles.

“We worked on it over Thanksgiving break. My mom was visiting, and I was like: ‘I’m really sorry, we have to get this out,’” said Upadhyay. “The stakes were so high.”

Evaluating scientific evidence is difficult under the best of circumstances. To the untrained eye, academic journals are a thicket of unknown quality, and “peer review” is a lofty term but is only as strong as the people doing the reviewing.

Even when researchers make a compelling case, journals can be loath to correct the scientific record. That allows a contested article to be further cited and compounds the damage of poor evidence..

“For every one paper that is retracted, there are probably 10 that should be,” Ivan Oransky, co-founder of Retraction Watch, recently told the New York Times. Retraction Watch maintains a database of more than 47,000 retracted studies.

Should the court choose to undermine the FDA, it will be the result of a tragic irony – that one of the world’s most respected arbiters of science could be undone by research that would never meet its standards."

How rightwing groups used junk science to get an abortion case before the US supreme court | Abortion | The Guardian

The A.C.L.U. Said a Worker Used Racist Tropes and Fired Her. But Did She? - The New York Times

The A.C.L.U. Said a Worker Used Racist Tropes and Fired Her. But Did She?

The civil liberties group is defending itself in an unusual case that weighs what kind of language may be evidence of bias against Black people.

The facade of the A.C.L.U. building in Washington.

The A.C.L.U. said a worker’s complaints about several superiors — all of whom were Black — used “racist stereotypes.”Credit...Ting Shen for The New York Times

Jeremy W. Peters

By Jeremy W. Peters

March 22, 2024, 5:05 a.m. ET

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Kate Oh was no one’s idea of a get-along-to-go-along employee.

During her five years as a lawyer for the American Civil Liberties Union, she was an unsparing critic of her superiors, known for sending long, blistering emails to human resources complaining about what she described as a hostile workplace.

She considered herself a whistle blower and advocate for other women in the office, drawing unflattering attention to an environment she said was rife with sexism, burdened by unmanageable workloads and stymied by a fear-based culture.

Then the tables turned, and Ms. Oh was the one slapped with an accusation of serious misconduct. The A.C.L.U. said her complaints about several superiors — all of whom were Black — used “racist stereotypes.” She was fired in May 2022.

The A.C.L.U. acknowledges that Ms. Oh, who is Korean American, never used any kind of racial slur. But the group says that her use of certain phrases and words demonstrated a pattern of willful anti-Black animus.

In one instance, according to court documents, she told a Black superior that she was “afraid” to talk with him. In another, she told a manager that their conversation was “chastising.” And in a meeting, she repeated a satirical phrase likening her bosses’ behavior to suffering “beatings.”

Image

An image of the court transcript. 

An A.C.L.U. lawyer discusses Ms. Oh’s use of the phrase “the beatings will continue until morale improves,” according to the transcript of arbitration hearing.

Did her language add up to racism? Or was she just speaking harshly about bosses who happened to be Black? That question is the subject of an unusual unfair-labor-practice case brought against the A.C.L.U. by the National Labor Relations Board, which has accused the organization of retaliating against Ms. Oh.

A trial in the case wrapped up this week in Washington, and a judge is expected to decide in the next few months whether the A.C.L.U. was justified in terminating her.

If the A.C.L.U. loses, it could be ordered to reinstate her or pay restitution.

The heart of the A.C.L.U.’s defense — arguing for an expansive definition of what constitutes racist or racially coded speech — has struck some labor and free-speech lawyers as peculiar, since the organization has traditionally protected the right to free expression, operating on the principle that it may not like what someone says, but will fight for the right to say it.

The case raises some intriguing questions about the wide swath of employee behavior and speech that labor law protects — and how the nation’s pre-eminent civil rights organization finds itself on the opposite side of that law, arguing that those protections should not apply to its former employee.

A lawyer representing the A.C.L.U., Ken Margolis, said during a legal proceeding last year that it was irrelevant whether Ms. Oh bore no racist ill will. All that mattered, he said, was that her Black colleagues were offended and injured.

Politics Across the United States

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March 19 Primaries: Bernie Moreno, a political newcomer, was among the winners of the night in a hotly contested race to determine which Ohio Republican would take on Sherrod Brown, the incumbent Democratic senator.

Targeting D.E.I.: Alabama Republicans pushed through a sprawling measure that would ban state funding for diversity, equity and inclusion programs at public universities, local boards of education and government agencies, and restrict the teaching of race, gender and identity.

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Follow our coverage of the 2024 election here.

“We’re not here to prove anything other than the impact of her actions was very real — that she caused harm,” Mr. Margolis said, according to a transcript of his remarks. “She caused serious harm to Black members of the A.C.L.U. community.”

Rick Bialczak, the lawyer who represents Ms. Oh through her union, responded sarcastically, saying he wanted to congratulate Mr. Margolis for making an exhaustive presentation of the A.C.L.U.'s evidence: three interactions Ms. Oh had with colleagues that were reported to human resources.

“I would note, and commend Ken, for spending 40 minutes explaining why three discreet comments over a multi-month period of time constitutes serious harm to the A.C.L.U. members, Black employees,” he said.

Yes, she had complained about Black supervisors, Mr. Bialczak acknowledged. But her direct boss and that boss’s boss were Black.

“Those were her supervisors,” he said. “If she has complaints about her supervision, who is she supposed to complain about?”

Image

A transcript of an email sent by the A.C.L.U.’s head of equity and inclusion to Kate Oh on April 4, 2022.

Ms. Oh declined to comment for this article, citing the ongoing case.

The A.C.L.U. has a history of representing groups that liberals revile. This week, it argued in the Supreme Court on behalf of the National Rifle Association in a First Amendment case.

But to critics of the A.C.L.U., Ms. Oh’s case is a sign of how far the group has strayed from its core mission — defending free speech — and has instead aligned itself with a progressive politics that is intensely focused on identity.

“Much of our work today,” as it explains on its website, “is focused on equality for people of color, women, gay and transgender people, prisoners, immigrants, and people with disabilities.”

And since the beginning of the Trump administration, the organization has taken up partisan causes it might have avoided in the past, like running an advertisement to support Stacey Abrams’s 2018 campaign for governor of Georgia.

“They radically expanded and raised so much more money — hundreds of millions of dollars — from leftist donors who were desperate to push back on the scary excesses of the Trump administration,” said Lara Bazelon a law professor at the University of San Francisco who has been critical of the A.C.L.U. “And they hired people with a lot of extremely strong views about race and workplace rules. And in the process, they themselves veered into a place of excess.”

“I scour the record for any evidence that this Asian woman is a racist,” Ms. Bazelon added, “and I don’t find any.”

The beginning of the end for Ms. Oh, who worked in the A.C.L.U.’s political advocacy department, started in late February 2022, according to court papers and interviews with lawyers and others familiar with the case.

The A.C.L.U. was hosting a virtual organization-wide meeting under heavy circumstances. The national political director, who was Black, had suddenly departed following multiple complaints about his abrasive treatment of subordinates. Ms. Oh, who was one of the employees who had complained, spoke up during the meeting to declare herself skeptical that conditions would actually improve.

“Why shouldn’t we simply expect that ‘the beatings will continue until morale improves,’” she said in a Zoom group chat, invoking a well-known phrase that is printed and sold on T-shirts, usually accompanied by the skull and crossbones of a pirate flag. She explained that she was being “definitely metaphorical.”

Image

Another transcript of an email sent by the A.C.L.U.’s head of equity and inclusion to Kate Oh on April 4, 2022.

Soon after, Ms. Oh heard from the A.C.L.U. manager overseeing its equity and inclusion efforts, Amber Hikes, who cautioned Ms. Oh about her language. Ms. Oh’s comment was “dangerous and damaging,” Ms. Hikes warned, because she seemed to suggest the former supervisor physically assaulted her.

“Please consider the very real impact of that kind of violent language in the workplace,” Ms. Hikes wrote in an email.

Ms. Oh acknowledged she had been wrong and apologized.

Over the next several weeks, senior managers documented other instances in which they said Ms. Oh mistreated Black employees.

In early March, Ben Needham, who had succeeded the recently departed national political director, reported that Ms. Oh called her direct supervisor, a Black woman, a liar. According to his account, he asked Ms. Oh why she hadn’t complained earlier.

She responded that she was “afraid” to talk to him.

“As a Black male, language like ‘afraid’ generally is code word for me,” Mr. Needham wrote in an email to other A.C.L.U. managers. “It is triggering for me.”

Mr. Needham, who is gay and grew up in the Deep South, said in an interview that as a child, “I was taught that I’m a danger.”

To hear someone say they’re afraid of him, he added, is like saying, “These are the people we should be scared of.”

Ms. Oh and her lawyers have cited her own past: As a survivor of domestic abuse, she was particularly sensitive to tense interactions with male colleagues. She said she was troubled by Mr. Needham’s once referring to his predecessor as a “friend,” since she was one of the employees who had criticized him.

Mr. Needham said he had been speaking only about their relationship in a professional context.

According to court records, the A.C.L.U. conducted an internal investigation into whether Ms. Oh had any reason to fear talking to Mr. Needham, and concluded there were “no persuasive grounds” for her concerns.

The following month, Ms. Hikes, the head of equity and inclusion, wrote to Ms. Oh, documenting a third incident — her own.

“Calling my check-in ‘chastising’ or ‘reprimanding’ feels like a willful mischaracterization in order to continue the stream of anti-Black rhetoric you’ve been using throughout the organization,” Ms. Hikes wrote in an email.

“I’m hopeful you’ll consider the lived experiences and feelings of those you work with,” she added. (Citing the ongoing case, the A.C.L.U. said Ms. Hikes was unable to comment for this article.)

The final straw leading to Ms. Oh’s termination, the organization said, came in late April, when she wrote on Twitter that she was “physically repulsed” having to work for “incompetent/abusive bosses.”

As caustic as her post was — likely grounds for dismissal in most circumstances — her speech may have been protected. The N.L.R.B.’s complaint rests on an argument that Ms. Oh, as an employee who had previously complained about workplace conditions with other colleagues, was engaging in what is known legally as “protected concerted activity.”

“The public nature of her speech doesn’t deprive it of N.L.R.A. protection,” said Charlotte Garden, a law professor at the University of Minnesota, referring to the National Labor Relations Act, which covers worker’s rights.

She added that the burden of proof rests with the N.L.R.B., which must convince the judge that Ms. Oh’s social media post, and her other comments, were part of a pattern of speaking out at work.

“You could say this is an outgrowth of that, and therefore is protected,” she said.

The A.C.L.U. has argued that it has a right to maintain a civil workplace, just as Ms. Oh has a right to speak out. And it has not retreated from its contention that her language was harmful to Black colleagues, even if her words were not explicitly racist.

Terence Dougherty, the general counsel, said in an interview that standards of workplace conduct in 2024 have shifted, likening the case to someone who used the wrong pronouns in addressing a transgender colleague.

“There’s nuance to the language,” Mr. Dougherty said, “that does really have an impact on feelings of belonging in the workplace.”

The A.C.L.U. Said a Worker Used Racist Tropes and Fired Her. But Did She? - The New York Times

How the Fight Against Apple Could Redefine Antitrust Law

“The Justice Department’s lawsuit against the iPhone maker pushes the boundaries of competition rules. Some experts say that may make winning more difficult.

March 22, 2024, 8:03 a.m. ET

Justice Department officials, including the antitrust chief Jonathan Kanter, foreground, are trying to push the boundaries of regulations with the new lawsuit against Apple.Jose Luis Magana/Associated Press

A shot at Apple’s moneymaker 

With its antitrust lawsuit against Apple, the Biden administration has joined a growing list of regulators taking on the iPhone giant. But the Justice Department is taking a more ambitious approach than the others by aiming at the company’s tight control of the iPhone ecosystem, which officials say hurts consumers and developers while producing giant profits.

If successful, the case could upend a business model that has made Apple one of the most profitable companies in history — but victory would require courts to accept a redefinition of decades-old antitrust law.

Prosecutors zeroed in on Apple’s efforts to lock-in consumers. The Justice Department argues that the company unlawfully restricted competition by blocking key iPhone features to prevent consumers from switching devices.

Apple is profiting “not by making its own products better, but by making other products worse,” Attorney General Merrick Garland said on Thursday.

The lawsuit identified five areas: smart watches, digital wallets, cloud-based gaming, messaging apps — yes, the green-bubble debate is key here — and so-called “super apps” that bundle different programs. (It also suggests that Apple’s behavior affects an even wider array of products, including cars.)

Apple said the approach amounted to excessive interference in business.“If successful, it would hinder our ability to create the kind of technology people expect from Apple — where hardware, software, and services intersect,” a spokeswoman said, adding that it would let the government have a heavy hand in designing people’s technology.

Regulators globally are already changing how Apple operates. The European Union’s sweeping Digital Markets Act aims to open up iOS and the App Store, and the bloc has also fined the company $2 billion for hampering music-streaming competitors.

South Korea and the Netherlands have adopted legislation to require app store owners to allow alternative payment systems. (Skeptics say Apple is seeking to undermine those efforts.)

The new case pushes the boundaries of traditional antitrust policy. That’s in keeping with the stated aim of regulators like Jonathan Kanter, the Justice Department’s antitrust chief, and Lina Khan, the head of the F.T.C.

“We want to help real people by making sure that our antitrust laws work for workers, work for consumers, work for entrepreneurs and work to protect our democratic values,” Kanter told The Times in January, declining to comment on specific cases.

But some experts think this lawsuit is a stretch. Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School, told DealBook that antitrust policy traditionally hasn’t focused on issues like porting consumer data to different platforms.

He added that while prosecutors were seeking to help some consumers — those who favor switching devices — the lawsuit could end up hurting others. Users of iOS “derive a lot of value from their closed ecosystem,” he said. “Apple users like the closed ecosystem and the benefits that confers on them.”

Inside Garland’s Effort to Prosecute Trump

“In trying to avoid even the smallest mistakes, Attorney General Merrick B. Garland might have made one big one: ending up in a race against the clock.

March 22, 2024

Like most of official Washington, Mr. Garland did not count on former President Donald J. Trump’s political resurrection after the Jan. 6, 2021, Capitol riot.Jason Andrew for The New York Times

Like most of official Washington, Mr. Garland did not count on former President Donald J. Trump’s political resurrection after the Jan. 6, 2021, Capitol riot.Jason Andrew for The New York Times

After being sworn in as attorney general in March 2021, Merrick B. Garland gathered his closest aides to discuss a topic too sensitive to broach in bigger groups: the possibility that evidence from the far-ranging Jan. 6 investigation could quickly lead to former President Donald J. Trump and his inner circle.

At the time, some in the Justice Department were pushing for the chance to look at ties between pro-Trump rioters who assaulted the Capitol on Jan. 6, 2021, his allies who had camped out at the Willard Hotel, and possibly Mr. Trump himself.

Mr. Garland said he would place no restrictions on their work, even if the “evidence leads to Trump,” according to people with knowledge of several conversations held over his first months in office.

“Follow the connective tissue upward,” said Mr. Garland, adding a directive that would eventually lead to a dead end: “Follow the money.”

With that, he set the course of a determined and methodical, if at times dysfunctional and maddeningly slow, investigation that would yield the indictment of Mr. Trump on four counts of election interference in August 2023.

The story of how it unfolded, based on dozens of interviews, is one that would pit Mr. Garland, a quintessential rule follower determined to restore the department’s morale and independence, against the ultimate rule breaker — Mr. Trump, who was intent on bending the legal system to his will.

Mr. Garland, 71, a former federal judge and prosecutor, proceeded with characteristic by-the-book caution, pressure-testing every significant legal maneuver, demanding that prosecutors take no shortcuts and declaring the inquiry would “take as long as it takes.”

As a result, prosecutors and the F.B.I. spent months sticking to their traditional playbook. They started with smaller players and worked upward — despite the transparent, well-documented steps taken by Mr. Trump himself, in public and behind the scenes, to retain power after voters rejected his bid for another term.

In trying to avoid even the smallest mistakes, Mr. Garland might have made one big one: not recognizing that he could end up racing the clock. Like much of the political world and official Washington, he and his team did not count on Mr. Trump’s political resurrection after Jan. 6, and his fast victory in the 2024 Republican presidential primary, which has complicated the prosecution and given the former president leverage in court.

In 2021 it was “simply inconceivable,” said one former Justice Department official, that Mr. Trump, rebuked by many in his own party and exiled at his Florida estate Mar-a-Lago, would regain the power to impose his timetable on the investigation.

“I think that delay has contributed to a situation where none of these trials may go forward,” Representative Adam B. Schiff, Democrat of California, said in a recent interview on CNN, citing the Justice Department’s approach as a factor. “The department bears some of that responsibility.”

The Supreme Court’s decision to review Mr. Trump’s claims of presidential immunity in the case has now threatened to push the trial deep into the campaign season or beyond, raising the possibility that voters will make their choice between Mr. Trump and President Biden in November without Mr. Trump’s guilt or innocence being established.

It has resurfaced a question that has long dogged Mr. Garland: What took so long?

It would take the department nearly a year to focus on the actions contained in the indictment ultimately brought by Jack Smith, the special counsel Mr. Garland later named to oversee the prosecution: systematic lies about election fraud, the pressure campaign on Vice President Mike Pence, the effort to replace legitimate state electors with ersatz ones.

Officials in the Biden White House have long expressed private consternation with Mr. Garland’s pace. The select committee established by the House in 2021 to investigate what led to the Jan. 6 riot made it an all-but-explicit goal to force the Justice Department to pursue the case more aggressively, and in Georgia, a local prosecutor was going head-on at Mr. Trump’s efforts to overturn his loss even before Mr. Garland was sworn in.

Mr. Garland set into motion a slow and determined Justice Department investigation that would ultimately yield to the indictment of Mr. Trump.Yuri Gripas for The New York Times

People around Mr. Garland, who like others interviewed for this article spoke on the condition of anonymity to discuss Justice Department affairs, say there would be no case against Mr. Trump had Mr. Garland not acted decisively. And any perception that the department had made Mr. Trump a target from the outset, without exploring other avenues, would have doomed the investigation.

“Don’t confuse thoughtful with unduly cautious,” said a former deputy attorney general, Jamie S. Gorelick, who sent Mr. Garland, then her top aide, to oversee the prosecution of the 1995 Oklahoma City bombing. “He was fearless. You could see it then, and you could see it when he authorized the search at Mar-a-Lago.”

Mr. Garland’s allies point to how, by the summer of 2021, the attorney general and his powerful deputy, Lisa O. Monaco, were so frustrated with the pace of the work that they created a team to investigate Trump allies who gathered at the Willard Hotel ahead of Jan. 6 — John Eastman, Boris Epshteyn, Rudolph W. Giuliani and Roger J. Stone Jr. — and possible connections to the Trump White House, according to former officials.

That team would lay the groundwork for the investigation that Mr. Smith would take over as special counsel a year and a half later.

But a host of factors, some in Mr. Garland’s control, others not, slowed things down.

Department leaders believed that the best way to justify prosecuting Mr. Trump and the Willard plotters was to find financial links between them and the rioters — because they thought it would be more straightforward and less risky than a case based on untested election interference charges, according to people with knowledge of the situation. But that conventional approach, rooted in prosecutorial muscle memory, yielded little.

There were also problems inside the part of the Justice Department leading the investigation, the U.S. attorney’s office in Washington. The office was racked by personnel issues and buckling under the weight of identifying and prosecuting Jan. 6 rioters — an investigation that became the largest ever undertaken by the department.

Mr. Garland and his team decided early on not to take direct control of the investigation themselves, as the department had done after the Oklahoma City bombing.

And for much of 2021, the U.S. attorney’s office at first prioritized indicting key members of the Proud Boys and Oath Keepers, far-right groups that played a crucial role in the assault, on charges of seditious conspiracy.

Time will tell whether Mr. Garland and Ms. Monaco made the right calls in the period before they turned the investigation over to Mr. Smith, who within eight months brought not only the election-case indictment but the separate charges against Mr. Trump for mishandling classified documents.

But like many before them, Mr. Garland and his team appear to have underestimated Mr. Trump’s capacity for reinvention and disruption, in this case through delay.

Justice Department leaders initially believed that the best way to justify prosecuting Mr. Trump and his allies was to find financial links between them and the rioters. But that approach yielded little.Pete Marovich for The New York Times

A shaky start: January to March 2021

On Jan. 6, 2021, Mr. Garland was in his attic office in suburban Maryland, drafting remarks he would deliver the next day in Delaware when Mr. Biden was to introduce him as his pick for attorney general.

The speech was to center on re-establishing “normal order” after four chaotic Trump years. Mr. Garland took a break, clicked on a livestream of rioters breaching the Capitol and realized, in a flash, that he would need to revise not only his speech, but his approach to the job.

He was still fine-tuning his language as his wife drove him to Wilmington the next morning.

The rule of law is “the very foundation of our democracy,” said Mr. Garland as Mr. Biden, whom he barely knew, looked on.

In February, while Mr. Garland awaited Senate confirmation, J.P. Cooney, a veteran prosecutor in the U.S. attorney’s office who ran the group investigating the riot’s ringleaders, drafted a proposal to fast-track elements of the investigation. It would also include seizing the phone of Mr. Stone, a longtime Trump associate who was part of the group that had been camping out at the Willard Hotel before Jan. 6 strategizing about how to keep Mr. Trump in office.

The F.B.I. and Justice Department balked at Mr. Cooney’s plan.

Mr. Cooney had prosecuted Mr. Stone in 2019 for obstructing a congressional investigation, only to have Trump appointees intervene to reduce the sentence — before Mr. Trump wiped it away. Some at the department worried Mr. Cooney might be trying to settle unfinished business, according to two former officials who now believe those doubts were misplaced.

For the next several months, the Willard inquiry, led by Mr. Cooney, took a back seat to another high-profile, high-risk effort: drafting novel seditious conspiracy charges against the leaders of the Oath Keepers and Proud Boys for their roles in the Capitol attack.

Mr. Garland is said to have grown frustrated with the pace of the work and created a team to investigate Trump allies who gathered at the Willard Hotel in Washington ahead of Jan. 6 — Boris Epshteyn, John Eastman, Rudolph W. Giuliani and Roger J. Stone Jr.Clockwise from top left: Hillary Swift for The New York Times; Anna Moneymaker for The New York Times; Rebecca Noble for The New York Times; Nicole Craine for The New York Times

Moving up the ladder: April to October 2021

Mr. Garland, like most attorneys general, did not weigh in himself on day-to-day decision-making. Instead, he would transmit his preferences on the Jan. 6 investigations every Thursday evening during a briefing with a half dozen aides. The team included L. Rush Atkinson, a senior counselor to Mr. Garland whose work for the special counsel Robert S. Mueller III offered valuable insight.

The meetings often lasted hours as Mr. Garland rattled off questions. One early query: Had Mr. Trump made incriminating statements during an Oval Office meeting in December 2020 when his team discussed overturning Mr. Biden’s electoral victory?

Ms. Monaco, 56, a former national security official in the Obama White House, was confirmed in April 2021. While she embraced her boss’s cautious, stepwise approach, she also had a keener awareness of political optics and was so trusted by Mr. Biden’s transition team she was chosen for her job weeks before Mr. Garland was selected for his.

She made it clear that the Willard investigation was a priority.

Anxiety about the investigation was growing among some prosecutors in the U.S. attorney’s office, some at Justice Department headquarters and eventually in the White House.

Then came a public warning shot. On June 30, the Democratic majority in the House voted to create a Jan. 6 committee, with teams assigned to investigate the fake electors plot and Mr. Trump’s effort to overturn the election.

This was no bottom-up, follow-the-money exercise: They aimed straight for Mr. Trump’s inner circle, issuing one of their first subpoenas to his final chief of staff, Mark Meadows. By late in the year, the committee was making clear that one of its goals was to force Mr. Garland to bring more urgency to the Justice Department investigation, suggesting it could make a criminal referral to the department on election interference charges.

Justice Department officials vehemently deny that external pressure spurred them to move faster and maintain that their decisions were prompted solely by the collection of evidence.

Nonetheless, their pace accelerated.

By the third week of June 2021, Mr. Garland had decided investigators had accumulated enough evidence to justify channeling more resources into the Willard investigation, according to people with knowledge of the situation.

Internal communications showed that Oath Keepers leaders were trying to contact the White House in the days leading up to the attack. Mr. Giuliani, whose phones had been seized by the F.B.I. in April in an unrelated investigation, seemed to be involved. Department leaders were recognizing that a Trump Justice Department official, Jeffrey Clark, whose pivotal role had already been well documented in news reports months earlier, was a central figure.

But the U.S. attorney’s office, which was supposed to be coordinating the investigation, did not have the bandwidth to do it, in Mr. Garland’s view, according to people he spoke with.

He groused about a lack of updates on the inquiry. During one meeting, an impatient Ms. Monaco interrupted prosecutors to ask, “OK, but where are we going to be on all this by Labor Day?”

Mr. Garland’s deputy, Lisa O. Monaco, gave the Trump investigation greater urgency, shape and direction.Dakota Santiago for The New York Times

In late June, Mr. Garland, Ms. Monaco and several aides decided they needed to take a dramatic step: creating an independent team, separate from Mr. Cooney’s original group, tasked with investigating the Willard plotters, with no restriction on moving up the ladder to Mr. Trump if the evidence justified it.

They did not want too many people knowing about it. So they gave it a vanilla name: the “Investigations Unit.”

Then things appear to have stalled.

Many veteran prosecutors were already being deployed on rioter cases, and recruiting for the team took longer than expected. In the meantime, Ms. Monaco turned her attention to reorganizing an overwhelmed U.S. attorney’s office in Washington, according to former officials.

Mr. Garland worked in a corner office, deliberating on an issue that was critical but not directly focused on Mr. Trump: whether to employ the symbolically powerful but little-used seditious conspiracy law against the leaders of the Proud Boys and the Oath Keepers. After weeks of internal debate, he signed off.

The investigations unit would not begin operating until November 2021, more than four months after its creation.

The turning point: October to December 2021

The man selected to run the unit was Thomas P. Windom, a career federal prosecutor in Maryland who had recently notched a pair of impressive victories in high-profile cases against white supremacists.

Mr. Windom was aggressive, tight-lipped and, in Mr. Garland’s view, somewhat impervious to partisan attacks — his father had been the Republican lieutenant governor of Alabama.

His arrival is now regarded as a major turning point. Back then, it was not clear to his colleagues what he was supposed to be doing.

Mr. Windom showed up at the U.S. attorney’s office without any fanfare or much explanation. He did not even have an office. Few of his new colleagues knew who he was. Agents in the F.B.I.’s field office learned of his existence when he began requesting files.

He was vague about his mission and chipper, if a bit chilly — with a habit of correcting people who called him “Tom” instead of “Thomas.” But it soon became clear that Mr. Windom was asking big-picture questions about Mr. Trump and his circle, and that he had the support of the department’s leaders.

He adopted the follow-the-money directive used in most organized crime and white-collar cases, including the Enron prosecution of the early 2000s that defined Ms. Monaco’s early career.

Yet the deeper prosecutors dug, the less about money they seemed to find.

It had initially appeared that the Proud Boys and Oath Keepers, in cahoots with some in Mr. Trump’s circle, bankrolled travel and lodging for allies, with the intention of blocking certification of the election. Mr. Windom was intent on finding out whether Mr. Stone and the Infowars founder Alex Jones were involved in a broader funding conspiracy, according to people familiar with the situation.

Most rioters drove themselves to Washington and paid for accommodations out of pocket or with crowdfunding. After seeking financial links to Mr. Trump’s circle, the Justice Department pivoted to an election fraud inquiry.Jason Andrew for The New York Times

The reality was more mundane. Most rioters drove themselves to Washington, paid their airfare and hotel bills out of pocket, slept on couches, or set up crowdfunding sites.

As the year came to a close, the department’s leadership had no alternative but to steer the investigation into choppy, uncharted waters: They shifted focus to election fraud.

End game: January to November 2022

In January 2022, Mr. Garland announced his intention to pursue anyone involved in Jan. 6 “whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” Ms. Monaco publicly confirmed the department was investigating the mailing of fake elector certificates.

Behind the scenes, Mr. Windom had begun joining with investigators from other agencies, including the Postal Service, to track the trail of fake electors. He also teamed up with the Justice Department’s inspector general who had begun investigating Mr. Clark.

Until that point, the F.B.I. had mostly remained on the sidelines, leaving much of the initial work to state officials. But by late 2021, Paul M. Abbate, the F.B.I. deputy director, told senior law enforcement officials that the bureau was, in general, supportive of the inquiry.

Then Mr. Windom’s former boss in Maryland, Jonathan Lenzner, was named as chief of staff to the F.B.I. director, Christopher A. Wray, giving the prosecutor a direct line to the highest echelons of the bureau. Mr. Wray also instructed deputies to ensure that Mr. Windom had everything he needed.

By April, the Washington field office finally drafted an investigative memorequired to open the fake electors case, with Mr. Wray and Mr. Garland signing off.

The first telltale signs Mr. Windom was homing in on Mr. Trump and the half-dozen allies who would later be listed in the indictment as uncharged co-conspirators was a series of subpoenas issued by a grand jury in Washington.

Over the next few months, federal agents and prosecutors obtained search warrants and seized the phones of Mr. Clark and Mr. Eastman as well as Mr. Epshteyn and Mike Roman, a campaign strategist who was the director of Election Day operations for the Trump campaign in 2020.

It is not clear when Mr. Garland formally approved the investigation of Mr. Trump. But Mr. Windom’s team began issuing subpoenas, including a request for presidential phone logs, schedules and drafts of speeches by May 2022, and possibly sooner. By the summer, the department was directly asking witnesses about the president’s actions.

But by this time, Mr. Trump’s strategy of block and delay was being deployed. The process was slowed by the necessities of dealing with complex legal issues, in particular claims of executive privilege and attorney-client privilege when it came to material on the seized phones of Mr. Trump’s allies. The Justice Department set up a secret team of prosecutors, eventually employing more than a dozen lawyers to review the potentially protected materials, including emails.

It was known internally by the code name “Coconut” and, according to people familiar with the planning, led by a prosecutor from Portland, Ore., who was the only person authorized to talk to Mr. Windom’s team.

The department’s actions, significant and far-reaching as they were, were overshadowed by the Jan. 6 committee in the summer of 2022, which presented a firsthand and well-documented narrative of the effort to overturn the election.

Prosecutors, accustomed to working in the shadows and at their own pace, watched some potential witnesses answer questions on camera.

Mr. Garland has said, time and again, that the hearings had no impact on the Trump investigation. The department was motivated only by the need to “get it right,” which entailed “imagining the mistakes that we could make, and making sure that we don’t make them,” as he told a bar association conference recently.

But the pressure was clearly building. What Mr. Windom’s team wanted most were hundreds of raw transcripts of committee interviews, something the panel refused to turn over quickly.

The committee did not immediately make a criminal referral, but members were hardly shy about passing the torch to Mr. Garland. “The Justice Department doesn’t have to wait,” Representative Liz Cheney, Republican of Wyoming, a vocal advocate of prosecuting Mr. Trump, said at the time.

But wait it would. Mr. Windom’s team was hitting legal roadblocks set up by Mr. Trump and his allies. An intense series of legal battles would play out over the ensuing months with 25 witnesses called by the federal grand jury in the case. Those witnesses asserted executive privilege or other reasons for not testifying — by far the most time-consuming and frustrating element of the investigation, in the view of current and former officials.

There was another surprise. Despite the blockbuster hearings by the House panel, Mr. Trump was gaining political strength. On Nov. 15, 2022, he formally announced that he would be a candidate to recapture the presidency.

Three days later, Mr. Garland, following rules intended to insulate political appointees from accusations of election interference, announced his selection of Mr. Smith as a special counsel. By now, the department was in a race for time.

A few weeks earlier, Mr. Smith was driven into the department’s cobbled courtyard and whisked up to Mr. Garland’s office, where he was asked how quickly he could start.

Mr. Smith let Mr. Garland know he wanted to move fast, and signaled his intention to enlist Mr. Windom, which would save time and effort.

After returning to The Hague, where he served as a war crimes prosecutor, Mr. Smith was struck by a scooter while biking and fractured his leg. For a few anxious days, there was serious concern whether he would recover in time to take the job. But he rallied and was in Washington by Christmas, leg propped on a walker.

About seven months later, Mr. Windom, a half-smile on his face, took the measure of Mr. Trump, who scowled at him across a scuffed courthouse table as he was arraigned on charges of plotting to subvert the peaceful transfer of power.

Mr. Smith watched from a nearby bench, occasionally peeking at the clock on the wall.

Glenn Thrush covers the Department of Justice. He joined The Times in 2017 after working for Politico, Newsday, Bloomberg News, The New York Daily News, The Birmingham Post-Herald and City Limits. More about Glenn Thrush:”