Real Life Is Nothing Like TeeVee

The Testimony Jack Smith Gets This Week Builds on Work from Over a Year Agohttps://t.co/rYoN4YHMkY

— emptywheel (@emptywheel) April 6, 2023

emptywheel loves to chide reporters for reporting that an investigation is "heating up." She maintained a thread for sometime that would update with new tweets reflecting this "activity" in any one of the four investigations into Donald Trump.  While she never put it this way, the very idea that an investigation is "becoming more serious" is a TV melodrama trope.  Because the fact is the most realistic TeeVee with regard to criminal investigations is something like "Midsomer Murders" more than it is "Law and Order" or "CSI."

I watch "Midsomer Murders" in re-runs on the local PBS channel.  The shows are usually divided into two 45 minute episodes which I assume are broadcast per week, so you get one new story every two weeks.  There is a simple pattern:  a murder, an investigation, lots of moving about talking to people and going back to talk to people ("Why didn't you tell us about?") and some revelation from the pathologist or the crime scene, and more going back to talk to people (and always several more murders.  The police department really seems to be the most hapless in civilization.) until finally the investigation and the multiple murders and the carpet fibers or something, triggers a revelation and the murderer is cornered and confesses.

Nothing at all like real life, in other words.  But at least it moves stumblingly in the dark, assembling information until the murderer (who is always  a serial killer, leaving more and more bodies, and so evidence, piling up) is finally uncovered.  So not at all unlike a real criminal investigation, except the investigation can't be crammed into 90 minutes.

emptywheel's article is worth reading, so I only quote this much to give you a fair idea of what an investigation like this takes:

As I noted here, investigations in the era of cloud computing usually follow a clear logic:

Use subpoenas to obtain metadata to identify key subjects

Use metadata to obtain cloud warrants of subjects

Use cloud warrants to obtain warrants for phones (a necessary step if encrypted apps were used in furtherance of a crime, as was the case in the lead-up to January 6)

Use overt subpoenas for other witnesses to obtain evidence

Obtain grand jury testimony from witnesses

By the time the first overt subpoenas and warrants go out — which in the January 6 case was May 2022, though in the case of Sidney Powell was September 2021 — DOJ will already have obtained metadata and cloud content from key subjects of the investigation. Only after DOJ works through that covertly obtained evidence does it start doing the things that alert subjects to the scope of the investigation by subpoenaing other witnesses or seizing phones.

Even in a garden variety investigation, it can take six months from the date of seizure of a subject’s phone until an arrest. This was true even in the militia conspiracy cases, where arrests were an attempt to stave off further violence, in part because FBI was exploiting so many phones.

Yeah, you don't go from the crime scene (MAL; the Capitol Building) to buttonholing people to ask them questions (the favored practice of TV detectives the English speaking world over; well, in all crime dramas, from what I've seen) to suddenly realizing whodunit and arresting them with the certainty of a judicial conviction.  All those people conveniently tell the police what they know (who never take any notes!), and that's enough!  No need to bother with tedious depositions or grand jury testimony or warrants to get evidence (warrants are often mentioned, but the evidence appears back at the station, conveniently bagged and tagged and helpfully presented to move the narrative forward, not puzzled over to figure out whether this bit is important, or not).  And, of course, ultimately no need even for the trial:  the accused always confesses, so that the story can close with justice done.

Why can't real life be like that?  Well, review just those paragraphs quoted above, and you get a pretty good idea.  Sworn testimony, for example, is much better in court than "I didn't say that?  Who says I said that?  Officer Jones?  Did he right it down?  I didn't seem him write anything down!"  And six months from getting a phone to making an arrest?  Why?  On TeeVee they always get the data from the phone 10 seconds after you know they have it, and arrests are always before the next commercial break. 

TeeVee cops never get to a jury trial; and if they do, they almost never have drama like this:

The latest incident to delay the months-long Proud Boys seditious conspiracy trial: one juror has raised fears that she is being followed. W/ @HolmesLybrand https://t.co/NDnLU0etJL

— Hannah Rabinowitz (@HBRabinowitz) April 6, 2023