Democracy’s future depends on the stories told of the past. They must be told from facts.
We have important facts about the Jan. 6. insurrectionists Donald Trump incited to invade the Capitol. Some told an FBI informant that they intended to kill Mike Pence and Nancy Pelosi. They reportedly came within 60 seconds of finding Pence.
That close call should compel robust criminal investigations — not only to hold accountable all those who entered the Capitol but also to tell us exactly what Trump knew when he gave his speech that morning inciting the rioters.
The facts already known do not cast Trump in a good light.
Consider the context: Trump’s increasing desperation on Jan. 6 as the walls closed in on his prospects for holding power.
- More than 60 courts had rejected Trump’s unfounded legal attempts to overturn the election.
- On Jan. 2, Georgia Secretary of State Brad Raffensperger had refused, in an hourlong phone call, to knuckle under to Trump’s pleas to alter the Georgia vote count.
- On Jan. 3, Trump was stopped from replacing then-acting Attorney General Jeffrey Rosen with Jeffrey Clark, an assistant attorney general working with Trump to overturn Georgia’s election. A threat from the rest of the Justice Department leadership team to resign en masse forced Trump to back down.
- On Jan. 5, the U.S. attorney in Georgia resigned rather than collaborate in Trump’s attempts to overturn a state election result affirmed in three recounts.
These facts — along with Trump’s Jan. 6 speech in which he told supporters, “If you don’t fight like hell, you’re not going to have a country anymore,” “You’ll never take back our country with weakness” and “When you catch somebody in a fraud, you’re allowed to go by very different rules” — ought to be evidence enough, we think, to convict him in his imminent impeachment trial.
What is already known to prosecutors is likely also sufficient to indict Trump for his willful efforts to deny Americans’ civil rights by subverting our democracy.
But more is needed.
History — as well as competent prosecution — demands that we establish Trump’s knowledge and intent on Jan. 6 so that he is held accountable and we never forget the full extent of what happened. Did Trump, when he addressed his supporters, know what was planned? Did he know the intended risks to the lives of Capitol police, the vice president, the Speaker of the House and others? Did he have enough information before he spoke that he reasonably should have known the likely outcome?
Prosecutors have the tools to obtain that information.
They should consider these leads:
- Inside complicity? The Capitol invaders seemed to know exactly where to find Democratic leaders’ offices. In the days before, Republican congressional representatives and aides were apparently giving tours of the Capitol, rare because of COVID-19 restrictions. If the tours were requested to surveil, and the House members authorizing the tours knew, what communication — if any — did any of them have with the White House or with people in Trump’s orbit?
- Massive communications — apparently organizational — took place on right-wing websites prior to the rally. Donald Trump Jr., Stephen Miller and others close to the president cater to and follow similar, if not the same, fringe sites. What did they know about Jan. 6, and what did they communicate to the president?
- Trump confidants Steve Bannon, Roger Stone and Michael Flynn were involved in promoting the rally. Bannon predicted the day before that “all hell is going to break loose.” Trump campaign aides and fundraisers were involved in the rally’s organizing. The rally permit of Women First, a major organizer and funder, listed multiple Trump staffers as rally managers or VIPs. All were Trump or GOP veterans — not “grassroots” people; the Trump campaign had paid them $2.7 million over the previous two years. What did these people know? What did they communicate to others before the event?
- Trump told rallygoers he would march to the Capitol with them but instead returned to the White House. Why? Did he know or expect violence was likely to occur? Emails and text messages of his close associates and the organizers should be reviewed.
We need a thorough-going investigation to establish the precise depths of the depravity we just endured.
Donald Ayer served as deputy attorney general under George H.W. Bush and as a U.S. attorney and principal deputy solicitor general in the Reagan administration.
Dennis Aftergut is a former federal prosecutor and Supreme Court advocate, currently a Lawyers Defending American Democracy steering committee member.