January 6, 2021 – What Did Happen?

By Rafael Hoffman

In the wake of the 2020 elections, former President Donald Trump claimed that his loss was the result of fraudulent actions in several states and that once the facts were clarified, he would emerge as the victor. His campaign pursued more than 60 legal challenges attempting to prove that point, but across the board, judges said that none of the suits showed any evidence of fraud.

Undeterred by court losses, or many dismissive senior advisors, Mr. Trump continued his insistence that fraud existed to a degree that hands him the election. Many of his supporters accepted these claims, casting a contentious pall over the post-election period.

The phenomenon peaked on January 6, 2021, when Mr. Trump addressed thousands who gathered on the Capitol Mall for the “Stop the Steal” rally he had urged attendance at, as the electoral votes were set to be certified by Congress. He said, “We will never give up. We will never concede,” and called on his supporters to “fight.” Before he finished his address, some people at the rally turned violent, breaching police barricades. Over the coming hours, hundreds attacked law enforcement, ultimately breaking into the Capitol and delaying the election’s certification.

After the violence ended, the President tweeted, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

All of this and many more details have been known for some time amid media reports and several ongoing trials of participants in the violence. Yet, beginning a few weeks ago and for likely a month to come, the official congressional committee charged with investigating the events of January 6 is publicly rolling out its findings based on hundreds of interviews and thousands of hours of testimony.

A year and a half later, most facts are clear and most of the country seems fixed in their perceptions of the violence and of the former President’s fraud claims. Yet whether the committee will reveal new information or if its findings could trigger criminal charges against Mr. Trump or prompt legislative initiatives remains to be seen. In the haze of the polarized political moment, it is also difficult to see whether the committee’s telling will be forgotten, marginalized, or join other similar reports on the bookshelf of national narratives of American crisis.

A Story in Search of an Audience

In the wake of the riot, the idea of forming a congressional commission to investigate January 6 enjoyed bipartisan support, but as Democrats initiated a hopeless snap impeachment and Mr. Trump’s popularity among much of the GOP’s base remained strong, the matter became highly politicized. The then-Republican-controlled Senate rejected the idea. The House of Representatives moved ahead, but after Speaker Nancy Pelosi rejected two Republicans that Minority Leader Kevin McCarthy had recommended, perception of the committee as a partisan body was sealed in many minds. Even so, two Republicans with stalwart conservative records, but reputations for their criticisms of Mr. Trump’s untraditional leadership, were appointed members of the committee. One of them, Representative Liz Cheney, was given a prominent spot as co-chair and has been a very visible element of the proceedings so far.

Similar committees have been formed in the past, most recently to report on the 9/11 attacks, and their findings have been largely accepted. Yet, few on the list were seen as politically contentious at the time.

Jim Moore, who teaches politics and government at Pacific University in Oregon, felt that the committee’s conclusions would ultimately gain wider acceptance.

“I think eventually they will escape politicization just like Watergate and Iran Contra did when we got beyond them,” he said.

Professor Moore felt that even now, the committee’s presentation could have an impact on a significant slice of the public.

“Many millions will dismiss what they have to say and many others will say that they knew all of this already and it just confirms what they knew, but there are people, we don’t know how many, who I think will start to feel different about what happened from hearing this narrative,” he said.

An element that marked the hearings is their carefully choreographed style. Free of much real back-and-forth between members and witnesses, or the grandstanding that have become standard at broadcasted Congressional hearings, the proceedings so far have been focused on a factual presentation of events and conversations through a combination of live testimony and taped interviews. Some criticized the presentation as too Hollywood-like, but others felt it had value in achieving what is likely the committee’s chief goal of presenting a neat package to the public.

“A lot of what they are showing was already revealed in investigations and litigation, but they’re presenting it in a narrative format,” said Derek Muller, a professor at the University of Iowa College of Law, an expert in election law. “I don’t think they’re going to impeach [Trump] a third time, and the DOJ does not seem interesting in prosecution. … It’s more of a public information campaign.”

‘Team Crazy’

The committee’s initial hearing outlined the seven-point plan they argue Mr. Trump pursued in order to remain in office despite the election results. It also featured footage and testimony depicting the level of violence, which one Capitol police officer who was seriously injured at the riot told the committee resembled a “battle” scene. Their plan appears to chiefly be two-fold: to show how Mr. Trump’s rhetoric directly encouraged the violence that occurred at the Capitol and that his fraud claims and pressure on various levels of government were part of a carefully woven plan to prevent the transfer of power to the Biden administration.

The committee’s second session presented a collection of testimony from former Attorney General William Barr, Trump campaign manager Bill Stepien, and other senior Department of Justice and campaign officials detailing the extent to which Mr. Trump had been informed that there was no credible evidence to back up fraud accusations.

Competing with the plethora of voices urging the former President to abandon his fraud claims were what Mr. Stepien termed “team crazy” led by Rudy Giuliani and assisted by legal expert John Eastman and attorney Sidney Powell.

A session held last Thursday focused on the efforts by Mr. Trump and some of his associates to pressure Mr. Pence to use his role in presiding over the election certification on January 6 in Congress to block the process from moving forward and send electoral slates back to the states for reconsideration. Dr. Eastman was the creator of the theory that would allow a Vice President to take this unprecedented step, which nearly all constitution scholars and legal experts rejected out-of-hand as an illegal subversion of the election. On the morning of the certification, Mr. Pence’s office released a detailed letter saying that his role in Congress’ count was largely “ceremonial.” The “Stop the Steal” rally featured chants to “hang Mike Pence” and some constructed a makeshift gallows.

One item mentioned in the committee’s second session that had not attracted much public attention was the degree to which fraud claims were mobilized for fundraising. In the weeks following the election, the campaign raised $250 million, mostly in small dollar donations, ostensibly to help fight Mr. Trump’s post-election battles. In fact, the money was divided among several political PACs run by the former President or his close associates. California Democrat Representative Zoe Lofgren, who delivered the presentation, commented that “this was not only the big lie, this was also the big rip-off; supporters deserve better than what Trump and his allies did.”

Professor Muller said that, while deceitful, similar tactics are not uncommon to political fundraising.

“There’s a lot of looseness about fundraising,” he said. “If you raise money saying ‘Help me knock out Chuck Schumer’ and then funnel the money to campaigns of candidates that have no real chance of winning, there’s nothing illegal about that. [Trump and his team] could also argue that supporting these PACs was the best way to fight Trump’s election battles.”

A Plan

Most early impressions of the January 6 riot viewed the violence as the spontaneous acts of a group of disgruntled people. As investigations and trials of some of the participants got underway what emerged was a more nefarious picture. While many if not most participants came on their own and acted independently, the idea of the assault was allegedly planned by members of the small extremist groups, the Proud Boys and the Oath Keepers. The committee has outlined that emphasizing the role of these two groups will be part of their presentation over the coming weeks.

The leaders of both are currently facing a collection of charges for conspiracy over their role in the riots and several documents, social media posts, and text messages seem to back up the claim of an organized assault, presumably with the goal of pressuring legislators not to certify the election, or at least to delay their action.

Additionally, a documentary film maker, who also testified at the hearings, captured Oath Keepers leader Stewart Rhodes and Proud Boys leader Enrique Tarrio meeting briefly in a Washington parking garage on the night before the riot, though what was said at the encounter remains unknown.

“It seems there were plans; one group had a cache of weapons stored in advance and weapons had been purchased for the occasion,” said Dr. Todd Helmus, an expert on domestic extremism for the RAND corporation. “There definitely was some level of coordination.”

While violence on January 6 resulted in five deaths and many serious injuries, despite the apparent planning by groups that pose as armed militias, no shooting exchanges occurred and it does not appear that participants carried firearms.

Dr. Helmus was unsure as to why members of the groups came unarmed but offered a theory.

“It could be they realized that bringing weapons posed a risk of being stopped before they could put their plan in motion,” he said. “In retrospect, they didn’t need them; they basically accomplished their goal without weapons.”

Dr. Helmus thought that the committee’s presentation of the matter could affect some of the public’s views on the subject, but that political polarization still made that difficult.

“I think it should change perceptions,” he said. “Part of the challenge now is that there are broad sectors that are reluctant to face or understand the totality or severity of what happened.”

Charges?

Soon after the hearings got underway, a disagreement emerged among members of the committee whether to recommend specific criminal charges against Mr. Trump to the DOJ. Representatives Adam Schiff and Jamie Raskin made statements indicating that doing such was their plan, but the group’s chairman, Representative Bennie Thomson, ruled it out saying “that not our job.”

“It doesn’t really matter if they recommend charges to the DOJ or not,” said Professor Muller. “Congress can’t charge anybody with anything, and the information has been there for a while, if the DOJ wanted to act on it, they already would have done that.”

Professor Muller conjectured that one factor holding the Department back from investigating Mr. Trump or some of his close associates was a sensitivity to being perceived as politically motivated.

“There’s an underlying political reality that when you have someone who is eligible to serve again and who is a viable candidate, its hard for the Department of Justice to avoid the perception of misusing its power,” he said.

In the committee’s telling, Mr. Trump went to great ends to pressure his own DOJ to produce evidence of electoral fraud and pushed Mr. Pence to block Congress’ certification. His call to Georgia’s Secretary of State asking him to “find” the votes needed for him to win that state became public as have similar efforts to pressure other state officials to block or alter results.

A major thrust of the committee has been to show that Mr. Trump must have been aware that fraud claims were false and as such these efforts amount to a seditious, and possibly criminal, attempt to overturn an election and remain in office despite it. However, the fact that Mr. Giuliani and his “team” encouraged the fraud narrative could make that difficult to prove.

“Its always a problem in criminal law to try to infer people’s mental state; you had a lot of officials repeatedly telling him that he lost or that allegations of fraud were baseless, but other said otherwise and he listened to them,” said Professor Muller. “John Eastman laid out a theory that Pence had the authority to halt the certification … The call in Georgia telling the Secretary of State to find 11,780 votes sound like he was trying to pressure and influence him, but Trump seems convinced that he had actually won by much more than that.”

Looking Backward and Forward

While using the committee’s findings as a basis for additional prosecution might be unlikely, some feel that the group’s conclusions could have an impact in legislative changes. The least controversial would be budgeting additional resources for Capitol security. Many Republicans have argued that the security failures that allowed a mob to storm Congress should take a far more prominent role in the committee’s work.

Others point to the doubts Mr. Trump and those around him were able to throw on the nature of the certification process as a reason to clarify the Electoral Count Act, which created the procedure in response to the chaotic 1876 election. Reforming the law has garnered broad bipartisan support and there is already a working group in Congress to look at methods of amending it.

Professor Muller said that some of the committee’s report might move efforts to address the Act along but felt that direct recommendation might be counterproductive.

“Now, you have a bipartisan group thinking about it now and working quietly. If it comes out of this committee, that politicizes it and a bill that might have had 80 votes goes to one with 53,” he said.

What political ramifications the committee’s work will have also remains to be seen. Democrats are likely to use it as fodder to warn against voting for the “party of Trump” in upcoming midterms, though some of their strategists warned against running on the past rather than addressing issues of the day.

Currently, few elected Republicans are treating the committee’s work with much regard. A major factor in doing so is likely their calculation of the role that Mr. Trump and his loyal base could play in elections this November and beyond. Ironically, the heroes in committee’s telling so far are all the most conservative of Republicans themselves, including Mr. Pence and Mr. Barr, who were staunch supporters of the former President’s policies, but warned that his post-election actions were a bridge too far.

Professor Moore posited that when Mr. Trump fades from the scene, and possibly even sooner if his preferred candidates underperform in midterms, Republicans’ attitude might shift.

“Right now, even if the committee would find a smoking gun, I don’t think that would change many minds, but after 2022 elections, if Donald Trump makes endorsements that don’t pan out, I think we might see more Republicans embrace what the committee comes out with,” he said. “That’s what happened with Nixon. In 1974 after a lot of Republican candidates got hammered, they turned around and said, ‘OK Nixon did this stuff, we have to figure it out and move beyond it.’”

A silver lining that some have pointed to amid efforts to flesh out January 6 is that, despite a highly unusual campaign to challenge an election based on unsubstantiated fraud claims and even political violence, the system held. The Department of Justice did not act on unproven accusations, courts allowed for cases to be litigated and ruled on merits, Congress certified the election, and a transfer of power took place on schedule. 

Professor Muller warned that while institutional guardrails indeed stood up, more is needed to secure the American system.

“The system worked in that things moved on and there was a hand off of power,” he said. “But faith in the electoral system has been undermined. You now have a deep public distrust, and those healthy procedures and institutions can only last so long without public confidence. I worry about what that could mean for the future.”