Now that the truth is becoming clearer about the Capitol insurrection of Jan. 6, 2021 — that there was a deliberate, concerted effort to throw a legitimate election to the loser, former President Donald Trump, and that members of Congress and the former president’s chief-of-staff, among many others, seemingly participated — two overarching questions loom.
The first is what to do about the tendrils of anti-democracy sentiment that have seized all levels of government going into the 2022 midterms and the 2024 presidential election. It’s not hyperbole to say the experiment of American Democracy could be dead after the next election cycle.
The second is whether a fuller spectrum of those who were involved in the bloody coup attempt will see justice and accountability and if so, how. For that, we must look to prosecutors and courts, which hopefully are only just getting started.
Here’s is a snapshot of how things are unfurling in the courts these days:
Criminal charges
So far, 727 people have been criminally charged in connection with the Capitol insurrection — all but a few of them participanted in the swarming of the actual building on Trump’s apparent behalf. (One Capitol Police officer has been charged with two counts of obstruction of justice.) The allegations range from disorderly conduct to obstruction of an official proceeding, a charge under federal law that carries up to 20 years in prison.
Just this week, U.S. District Judge Dabney Friedrich — a Trump appointee — denied a motion to dismiss charges brought under that obstruction of official proceeding statute. Her ruling is important because it rejects a number of arguments that could be made by those inside government if they were ever similarly charged for their involvement in facilitating the insurrection.
Speaking from the House floor, Rep. Liz Cheney (R-Wyo.) — herself a lawyer — specifically cited obstruction of an official proceeding as a charge that might suit Trump himself. Friedrich’s ruling only governs the specific case before her and could be reversed by a higher court. However, the ruling is significant in that she rejected the defense’s argument that Congress’s counting of electoral votes is not an “official proceeding,” and that obstruction can only happen if evidence-related wrongdoing — like destroying documents — is involved. In her view, the events of Jan. 6 fit the bill of obstruction of an official proceeding.
Unclear consequences
Keep in mind that civil actions can only produce injunctions and money damages — they can’t put anyone in jail. For that, “we the people” must rely on prosecutors in the Department of Justice (DOJ) and at the state and local level.
Some folks are disappointed in Attorney General Merrick Garland’s anemic approach thus far — including federal District Court Judge Tanya S. Chutkan, who this week rejected, for the second time, DOJ’s low-balled sentencing recommendations: This time related to its request for home detention for an Ohio husband and wife involved in the insurrection.
Chutkan instead gave them jail time. “The country is watching,” she said. “There have to be consequences for participating in the attempted violent overthrow of the government.”
How closely is Garland himself watching?
Time crunch
Congress can investigate, but it cannot enforce the laws by bringing prosecutions. The midterm elections are barely 11 months away, and with Republicans poised to take over the House of Representatives, the Democrat-controlled House’s select committee investigating Jan. 6 is racing against time to issue a report.
Garland would presumably review this report in considering whether to engage a grand jury in earnest to look at potential charges against those in the highest echelons of government who participated in the Jan. 6 lawlessness. His moment is now.
Mounting civil cases
On the civil side, there at least five actions pending against the likes of Trump, his lawyer Rudy Giuliani, and other figures who allegedly took part in the failed attempt to overthrow the newly elected presidency. Rep. Bennie Thompson (D-Miss.) filed the first civil case in February against Trump, Giuliani, the Proud Boys and the Oath Keepers. However, he withdrew as plaintiff after becoming chairman of the Jan. 6 House select committee and was replaced by a handful of other members, including Reps. Veronica Escobar (D-Texas), Pramila Jayapal (D-Wash.), Hank Johnson (D-Ga.), Mary Kaptur (D-Ohio), Barbara Lee (D-Calif.), Jerry Nadler (D-N.Y.), Maxine Waters (D-Calif.) and Bonnie Watson-Coleman (D-N.J.).
Rep. Eric Swalwell (D-Calif.) sued Trump, Giuliani and Rep. Mo Brooks (R-Ala.) in March.
A few weeks later, two U.S. Capitol Police officers sued Trump. In August, seven Capitol Police officers sued a slew of defendants, including Trump, the Proud Boys, the Oath Keepers and Trump ally Roger Stone.
Just last week, D.C.’s attorney general sued the Proud Boys and the Oath Keepers. All five cases are pending in federal court in D.C.
One judge — Amit P. Mehta — has three of the cases and has scheduled a hearing for Jan. 10 to decide whether the cases can move forward.
Arguments
A number of the cases bring charges under the Civil Rights Act of 1871, which criminalizes conspiracies to “prevent, by force, intimidation, or threat” a person “holding any office, trust, or place of confidence under the United States . . . from discharging any duties thereof.” The statute also creates liability for failing to prevent acts that qualify.
The plaintiffs’ argument is that team Trump and others agreed to prevent members of Congress from discharging their lawful duties on Jan. 6 and took acts in furtherance of that agreement. The defendants argue, among other things, that the First Amendment and some version of absolute immunity prohibit civil liability for their actions.
The trove of texts and emails provided by former Chief of Staff Mark Meadows to the Jan. 6 select committee offer potential evidence of acts in furtherance of an agreement to halt the counting of electoral votes (for example, Rep. Jim Jordan’s (R-Ohio) text message outlining a “draft proposal” to pressure then-Vice President Mike Pence to refuse to certify certain electoral votes in executing his constitutional role on Jan. 6.)
Other claims dotting the civil complaints include directing, aiding or abetting assault and battery and intentional infliction of emotional distress. Approximately 140 Capitol Police and Metropolitan D.C. Police officers were injured due to the events of Jan. 6 — one of the worst days for U.S. law enforcement since 9/11.
The upcoming Jan. 10 hearing before Judge Mehta in three of these cases is significant for one primary reason: if the defendants’ bids to throw out the lawsuits fail, the cases will proceed to discovery, the phase of civil litigation in which the parties obtain evidence. In that process, witnesses will have to testify under oath in a judicial proceeding. It’s one thing to refuse to testify before Congress, but if some of the same players who are currently snubbing Congress try to snub a deposition notice and a court order directing compliance — jailtime is just a judge’s signature away.
The point here is that, without accountability, a Jan. 6-style event will happen again. It will likely happen with more emboldened actors, with possibly even more blood in the streets and with consequences too dire to contemplate.
Courts and prosecutors: Democracy needs you — now.
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle
Editor’s note: This piece has been updated to reflect Judges Friedrich’s ruling.