One year after Jan. 6 attack, fight for justice remains a Herculean task | Courthouse News Service
Tuesday, November 28, 2023
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Tuesday, November 28, 2023 | Back issues
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One year after Jan. 6 attack, fight for justice remains a Herculean task

On the first anniversary of the insurrection, common ground over the attack is as remote for the American public as for the lawmakers, Republican and Democratic alike, whose lives were threatened that day.

WASHINGTON (CN) — It's been one year. One year since a noose and gallows stood outside Congress. One year since police found two pipe bombs on Capitol Hill. One year since five people lost their lives amid the chaos. One year since a mob supporting the former president stormed the seat of America's government, intent on overturning a democratic presidential election. One year since the Jan. 6 insurrection.

Over the course of that year, more than 700 people have been arrested, a House committee has begun investigating the attack, and criminal charges have been brought against members of former President Donald Trump's administration for icing that panel out of information.

As ever, though, political lines have complicated the country's bid for justice. The very name, Justice for Jan. 6, was adopted in September 2021 by a group that opposes the prosecution of those who participated in the insurrection.

Those in favor of prosecution, on the other hand, say the charges should not end with the people who stormed the Capitol. They want more charges brought against any members of the Trump administration or Congress who egged on the attack or failed to intervene when they had a duty to, and they want bipartisan voting rights legislation at the federal level to revive faith in American elections.

But whether Jan. 6 is spoken of as a mere political protest or the day American democracy stood just one vice president away from its collapse differs greatly between Republicans and Democrats. That framing is important, experts say, because without course correction it could put the country on a path of increased polarization and contested elections for years to come.

Followers of the ‘Big Lie’

Of the more than 700 people charged criminally for participating in the attack, 150 people have pleaded guilty to charges ranging from illegally parading inside the Capitol to obstructing an official government proceeding — in this case, the certification of President Joe Biden's 2020 election win.

Robert A. Pape, professor of political science at the University of Chicago specializing in international security affairs and director of the Chicago Project on Security and Threats, said the prosecutions hold significance because the intent of the crimes was not merely to destroy property.

"It's important to keep in mind what happened on Jan. 6 was not simply trespassing or ordinary criminal behavior breaking windows, vandalism of the U.S. Capitol. It was an effort to stop the certification of a duly elected President of the United States," Pape said.

Those who broke into the Capitol on Jan. 6 were motivated by the "Big Lie," an unsubstantiated and roundly contradicted narrative espoused by the Republican Party and disseminated by Trump that Democrats had stolen the presidency through sweeping voter fraud.

That this conspiracy lives on one year after the deadly attack on Jan. 6 signals the mere prosecution of those who stormed the Capitol may not be enough of a response to the insurrection, according to David Schultz, political science professor at Hamline University and election law expert.

"What you would normally hope in a criminal justice system is that you do that kind of a mass prosecution, give that many sentences, maybe that serves as a deterrent," Schultz said. "But I don’t think that’s going to be enough here because these people were like the street-level indications of a really divided America."

The government case against Capitol rioter Brandon Straka includes this television screenshot from his speech at the Jan. 6 "Stop the Steal" rally ahead of the insurrection. (Image via Courthouse News)

All the Way to the Top

Definitions of justice often focus on punishment and deterrence as ways to signal that behavior cannot be accepted and should be prevented in the future.

In the case of Jan. 6, Cornell Clayton, director of the Thomas S. Foley Institute of Public Policy and Public Service at Washington State University, said the prosecutions of people who participated in the attack are largely about punishment. To work toward preventing similar attacks and a well-rounded conception of justice, however, Clayton said action needs to be taken against people in power who allowed the insurrection to happen.


“You need to send a very strong signal that democratic institutions are important and any effort to undermine them is going to be taken extremely seriously. So, that requires going after those in power who engaged, who actually organized, who motivated, who had the intention of overthrowing a legitimate election, and I think that’s the piece that’s missing so far," Clayton said.

In recent months, the House select committee investigating the Jan. 6 attack has homed in on Trump and members of his administration, attempting to parse out what Trump knew and was saying in the hours leading up to and during the insurrection.

Members of the committee, including Representative Liz Cheney of Wyoming, who is one of two Republicans on the panel but was ousted from the GOP over her criticisms of Trump, have signaled that they are looking into whether to recommend the Department of Justice prosecute Trump or his allies over their actions on Jan. 6.

Cheney has repeatedly alluded to the investigation's interest in whether Trump "through action or inaction, corruptly sought to obstruct or impede" Congress on that day, language that refers to the legal definition of a crime of obstruction of Congress.

Documents that have surfaced in recent weeks, including texts to Trump's former chief of staff Mark Meadows from Donald Trump Jr. and members of Fox News urging the then-president to publicly condemn the attack, have raised questions about why Trump did not step in to end the ambush.

Trump was impeached by the House in 2020 for his role in inciting the attack, but the Department of Justice has not signaled any movement on criminal charges against the former president or members of his staff for their roles that day.

Meadows and former Trump confidante Steve Bannon have been referred to the department for criminal charges for refusing to comply with the Jan. 6 committee's investigation. Bannon was indicted by a grand jury but neither former Trump official is facing charges related to the attack itself.

"That’s the great fear with what’s going on right now. If there is not a very robust response to the leaders of an effort to overthrow a legitimate democratic election, that really imperils our democracy,” Clayton said. "There are some Republicans, many I think, who understand the peril we are facing, and having official institutional sanctions apply will help, I think, give them more courage, give them the ability to stand up within their party."

Schultz doubts whether criminal prosecutions of Trump officials, if they were to happen, would change how many Republicans perceive Jan. 6.

"I am suspecting that a lot of Republicans will dismiss them and say, ‘These people are political prisoners now,' Schultz said.

David Sklansky, law professor and co-director of the Stanford Criminal Justice Center, said the Department of Justice and Congress need to act where there is evidence regardless of if their decisions on whether to prosecute will change the tenor of politics.

"Justice can't be subjected to partisan veto. So, the fact that one party is objecting to the prosecutions, it can't be a reason to hold off," Sklansky said. "The rule of law depends on the notion that everybody is subject to the rule of law, including members of the executive branch. We don't have kings, royalty in this country and it's important that criminal prosecutions be able to reach not just ordinary people, not just the people who rioted, but the people who were in fancy suites in Washington, D.C., orchestrating and inciting the riots, and people who were in the White House."

During Feb. 9 debate on whether it is constitutional to impeach Donald Trump now that he is no longer president, lead impeachment manager Representative Jamie Raskin of Maryland quoted a tweet from Trump that he posted on Jan. 6 and then deleted as violence raged in and outside of the U.S. Capitol. (Image courtesy of CSPAN via Courthouse News)

Free and Fair Elections

While Jan. 6 centered around Trump and an attempt to keep the former president in power, it was also the culmination of years of politicians dispensing lies about widespread voter fraud without evidence and state legislatures eroding voting rights protections — a trend that Schultz said must end in the wake of Jan. 6.

"What justice would be is when we have maybe the 2022, but certainly the 2024, elections, is that all sides [are willing to] walk away saying ‘We fought hard, we lost, and congratulations other side, you won,” Schultz said.

Democrats in Congress have attempted to pass voting rights legislation this year, with three bills passing the House but stalling out in the Senate due to Republican obstructionism.

Senate Democrats vowed to hold a vote this month on changing filibuster rules that, if approved, would push voting rights legislation through the chamber. To protect future elections and preventing another Jan. 6, however, Schultz insisted that the key is bipartisan support for voting rights policies — something that does not currently exist in Congress.

Schultz said voters, no matter their political party, need to have faith in the system, a goal that could be achieved if federal lawmakers compromise on legislation.

"There really has to be something brokered on voting rights and I just don’t know if there are the political forces in place that can bring the two parties together to compromise at this point," Schultz said. "When opposition doesn’t respect the legitimacy of the elections, that’s a significant deterioration of democratic norms and support."

If Congress fails to further protect voting rights from state erosion, Schultz said the dynamics that created the political environment for Jan. 6 will likely continue to exist.

"What we’re going to have is, for at least the next decade if we don’t pass legislation, a just continued stalemate where Congress grinds to a halt, we can’t make the kind of reforms we need to make, where one side always feels alienated," Schultz said.

The 71%

One year after Trump supporters stormed the Capitol, that alienation runs deep, and how Americans view the Jan. 6 attack differs greatly depending on political party affiliation.

Approximately 71% of Republicans and one-third of Americans believe Biden's win was definitely or likely illegitimate, according to a December poll by the University of Massachusetts Amherst.

These diametrically opposed perceptions of the event in turn forecast distrust over any policies or prosecutions in the wake of Jan. 6. Tatishe Nteta, professor of political science at Amherst and director of the poll, called it a question without a good answer.

"If you look back on the history of the nation, we have come back from much more violent divides, much more impactful divides to a place of, you know, relative peace and stability within the borders of the nation. If you look at social psychology, the thing we're going to need to focus on are things that bring us together," Nteta said. "The question moving forward is whether or not we can get to a point or a place in which the divide is not as extensive is not as intense and it does not really define who we are as a country."

Sklansky doesn't see Jan. 6 as the event that will spark a political reckoning and bridging of the partisan divide, noting the GOP's continued embrace of Trump and repudiation of his critics, including Congresswoman Cheney.

"I think there were signs it appeared to be happening in the immediate aftermath of Jan. 6, but the Republican Party largely made a choice," Sklansky said.

Betsy Sinclair, political science professor at Washington University in St. Louis and political behavior researcher, sees civic engagement and changes in how average voters approach members of the opposite party as a possible way to alter the harsh tenor of American politics at a micro level.

"I do think there will be some process of trickling up, I think it'd be really terrific if we were seeing more trickling down. I think there are a lot of opportunities for, our political elite to set a different set of norms. And I think that, maybe we could see some better leadership in this space. But I think people are increasingly aware that anger drives them to make different choices, and then they can, sometimes, they can choose to change the channel," Sinclair said.

It's uncertain what the justice for Jan. 6 ideal could mean for American politics, or to the perception of the attack among Republican lawmakers and voters.

"What I know is failing to do so will have an impact," Pape said. "If we just ignore this because we think it's hard politically, that just gives oxygen to the idea that it's fine to do it again. The biggest problem here is that Jan. 6 was the first but there are no guarantees this is a one-off."

A soon-to-be published Amherst poll paints a stark picture about how voters view future elections, with 83% of respondents who voted for Biden and 42% who voted for Trump noting concern about violence in the 2024 presidential election.

"That's why everybody in the United States, including people who support Donald Trump and including people who thought they supported the insurrection, should be in favor of justice here because they don't know the conditions under which other presidents or other political figures will try to do it for themselves," Pape said.

More than 200 years ago, the United States established the principle of the peaceful transfer of presidential power, a tenant that the Jan. 6 insurrection attempted to upend.

"We badly have weakened the fundamental norms we established in 1800. They’re not gone yet, and we have time to fix them, but I think we’re going to be in a position for the next decade or so where we are going to teeter right on the brink on a lot of problems," Schultz said.

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