We Know What We Have To Do
Holding the perpetrators of January 6 accountable is not an act of vengeance; it is required for the defense of democracy.
With the Inauguration of Joe Biden as the 46th President of the United States, democracy in America has been given a new lease on life at home and abroad. No one who cares about our ongoing experiment in self-government could fail to be moved by the healing tone and beautiful pageantry of Wednesday’s Inaugural events. Resonating throughout Biden’s eloquent and heartfelt Inaugural Address and the other prayers, songs, and speeches of that poignant day were the words Biden has often quoted from his favorite poet, Seamus Heaney:
History says, Don’t hope
On this side of the grave.
But then, once in a lifetime
The longed-for tidal wave
Of justice can rise up,
And hope and history rhyme.
President Biden inherits a once-in-a-lifetime convergence of crises: the ravages of tenacious racial injustice and division, soaring poverty and unemployment, the deadliest pandemic in a century, the most destructive political polarization since the Civil War, and the most incompetent and malevolent predecessor in U.S. history.
Recovery will not be quick or easy. Biden by nature is a healer and bridge-builder; he is right to see in this American carnage opportunities for renewal rather than grounds for despair. But we cannot renew American democracy unless we defend it.
Donald Trump, the first American President bereft of commitment to democracy, has done grave damage to our constitutional system. It will be some time (if ever) before we know how close our democratic form of government came to breakdown on January 6; but the mob of violent protestors included heavily armed extremists with apparent plans to seize and murder the Vice President, the Speaker of the House, and possibly other members of the House and Senate. They may have come within minutes of executing much of their deadly plot. Would Donald Trump have declared martial law at that point, as his former national security advisor, Michael Flynn, reportedly urged him to do? Was his bizarre post-election purge of senior Pentagon leadership, replacing them with extreme political loyalists, linked to plans to use the military in a succession crisis? What did Trump know about the plans of the mob leaders when—in a speech full of falsehoods and fantasies about a stolen election—he angrily incited the large crowd to go to the Capitol and “fight like hell” because “if you don’t fight like hell you’re not going to have a country anymore”?
Even without mass congressional casualties, the desecration of the Capitol by a frenzied fascist rabble—including white supremacists, neo-Nazis, and other hate-filled extremists—was horrific (and historic) enough. Yet it was not enough to sober the 8 Republican Senators and 139 House Republicans (more than two-thirds of the House Republican caucus) who voted to challenge Electoral College results that had been repeatedly vetted, reviewed, and certified by state officials, many of them lifelong Republicans. Nor were these Republicans dissuaded by the failure of 61 pro-Trump lawsuits challenging the results (minus one court victory of little consequence) or the fact that many of the adverse rulings were delivered by Republican- appointed judges.
No remotely objective person could argue that Trump’s charges of election fraud failed to get a fair legal hearing. No remotely persuasive evidence was offered suggesting malpractice on a scale that might have changed any state election outcome. Yet, with the Capitol still bearing fresh scars of violent rebellion, 147 congressional Republicans persisted in the effort to delegitimize the election. This effort was fed not just by Trump’s incitement but by this much wider complicity of Republicans in promoting the lie that Biden was not the legitimately elected President. As a result, three in four Republicans and over a third of independents now believe it.
The most paralyzing partisan polarization and electoral distrust since 1876 now leaves the new Biden Administration on the horns of a fierce political dilemma. If it seeks accountability for the worst crime against democracy since the 1861 insurrection, it risks worsening polarization. If it fails to act, it will encourage future challenges to the clear and well adjudicated results of a democratic election and, worse, future acts of violent resistance and sedition.
Dilemmas about reform also abound. The 2020 election was one of the best administered and drew the highest participation in decades, yet we came close to disaster. What priority should the new administration place on the reform of election laws and administration when the country urgently needs federal action to contain the pandemic, revive the economy, repair the environment, and restore American leadership and credibility in the world? How do we rally Americans across party lines on behalf of deeper reforms of our democratic system?
My next article on these matters will consider such questions. Here, I ask how the Biden Administration should deal with the events of January 6.
One can only applaud Biden’s instinct and repeated call for unity. But as South Africa and other conflict-ridden societies have painfully demonstrated, genuine reconciliation, a necessity for securing unity, requires truth and accountability. We need a full accounting of what happened on January 6, and genuine accountability requires both due process and consequences for those found guilty. This must begin with President Trump, who was justly impeached for blatantly false and inflammatory rhetoric that even Republican Senate Leader Mitch McConnell believes “provoked” the mob.
Trump must stand trial in the Senate; his January 6 speech alone provides grounds for conviction. But before the Speaker of the House transmits the article of impeachment and triggers the trial, we should learn as much as possible about the connections between Trump and his inner circle, on the one hand, and the leaders of the violent mob on the other. More, the Senate should first confirm Biden’s Cabinet members and consider urgently needed legislation, especially for coronavirus relief.
The Senate trial must be held, but it doesn’t need to be rushed and needn’t be the last step in the non-partisan legal process to hold Donald Trump accountable for any criminal activity.
Holding Trump accountable for incitement, and the leaders of the mob for sedition, is not an act of vengeance; it is required for the defense of democracy. The purpose of law enforcement is not merely to remove dangerous people from society (or, in Trump’s case, the possibility of his regaining the presidency). In addition, under the democratic rule of law, prosecution, conviction, and punishment render society’s collective judgment that the behavior in question is wrong and illegitimate. Both the finding and the punishment, as Grant Tudor and Ian Bassin of Protect Democracy have recently argued, deter future lawbreakers.
Since we once elected an authoritarian populist as president, it cannot be assumed that we won’t do it again. Democracy needs stronger guardrails. Any congressional representative or staffer who can be shown to have actually incited sedition—or, worse, conspired in facilitating seditious entry into the Capitol—should also be prosecuted. As Michael Gerson has warned, “If the United States does not punish sedition, we will see more of it.”
Unfortunately, formal sanctions will have to stop short of the wider moral arc of complicity. As a scholar of democracy, I believe that every one of the 147 Republican members of Congress who voted to challenge a state’s legitimate election results fundamentally betrayed their oath of office to “support and defend the Constitution of the United States.” They displayed disloyalty to democracy. So did the 17 Republican state attorneys general who signed on to a vacuous Supreme Court lawsuit that would have invalidated the ballots of millions of Americans in states other than their own. It is one thing for members of civil society to judge that these Republicans have placed themselves beyond the democratic pale and that their ringleaders, like Senator Josh Hawley (R-Mo.), deserve to face a broad, well resourced campaign to defeat them in their next elections. It is quite another step, though, to bring formal charges against them. If Joe Biden wants to bridge divides and govern effectively, he cannot from the outset write off two-thirds of Republican House members, including their Minority Leader, Kevin McCarthy.
So far, over 100 people have been arrested and charged with crimes related to the January 6 assault on the Capitol. Every single individual who knowingly trespassed into the Capitol that day should be prosecuted. Additional charges should be filed against anyone who damaged property, used or threatened violence, or broke other laws. But federal law enforcement, working with state and local authorities and aided by widespread civic cooperation, faces the bigger and longer term task of exposing, demobilizing, and prosecuting extremist groups plotting violence against democratic officials and institutions.
January 6 should and, I believe, will have the kind of impact on law enforcement and homeland security priorities that 9/11 had a generation ago. Both were tragic wake-up calls. Fortunately, the more recent one did not cause loss of life on the same scale; but it posed a serious threat to the continuity of our democratic government. We face a ticking time bomb of proliferating right-wing extremist groups, populated by angry white men insecure about their status, filled with racial animus and anxiety, and deluded and inflamed by the falsehoods and conspiracy theories that constitute their steady diet of social media disinformation. While left-wing anti-capitalist and anarchist groups and radical Islamist networks still constitute serious threats to our homeland security, a recent CSIS study found that the majority of all terrorist incidents in the United States since 1994 have come from “right-wing attacks and plots,” whose number has “grown substantially during the past six years.”
To track, penetrate, monitor, and, when necessary, arrest and prosecute members of these groups, federal law enforcement needs increased resources, for monitoring them will become more difficult as major social media platforms move to expel them and they are driven deeper underground. Expulsion from social media platforms like Facebook and Twitter is the right and necessary course of action for groups and individuals that advocate violence. So is the commercial withdrawal of services and sponsorship to their new niche platforms, like Parler. But their retreat into deeper recesses of the internet, with more frequent use of encrypted communications, will present law enforcement with new challenges.
We also need new efforts to vet the members of our armed forces, including National Guard units, to ensure that none bears secret allegiance to the enemies of our constitutional system (whether right, left, foreign, or religious extremist). Recently, German authorities have launched a concerted effort to identify and purge from police and security services individuals identifying with extreme-right and white-supremacist (including neo-Nazi) organizations and cells. Whether Germany’s official efforts go far enough is a matter of debate, but at least the country is getting serious. Last November, the German parliament adopted the “most sweeping set of measures against racism and right-wing extremism in modern German history,” pouring over a billion euros of funding into dozens of programs to support action by and cooperation among security, judicial, state, and civil society institutions, plus research on how to prevent radicalization.
It took January 6 for the United States to realize the scope of this challenge. Now, we must act in similar fashion.
One thing in which we can take pride is our military leaders’ reaffirmation of democratic principle and political neutrality. In one of the most important military statements of democratic principle in American history, all eight members of the Joint Chiefs of Staff signed a January 13 memo to the members of the armed forces that recognized the legitimacy of Biden’s election, denounced the January 6 assault on the Capitol as “inconsistent with the rule of law,” and reiterated the duty of all service members to “support and defend the Constitution.” In language that some of their civilian leaders failed to summon on January 6, they declared, “Any act to disrupt the constitutional process is not only against our traditions, values and oath, it is against the law.”
Demobilizing homegrown extremism must involve more than law enforcement. In her recent trenchant reflection on the lessons we can learn from other countries torn by violent conflict, and from the very relevant parallels to religious cults, Anne Applebaum urges that we “Drop the argument and change the subject.” This need not mean dropping the charges against people guilty of plotting or organizing violence; but we need to find ways to give seditionist sympathizers new economic and social opportunities and new milieus for social engagement beyond their closed, dogmatic circles of resistance.
Fortunately, President Biden understands the need to bring new economic opportunity and infrastructure to the nation’s rural areas. He also understands the need for dialogue across social divides. At the outer edges of the resistance—the slice of America (maybe 20 percent) who believes Biden’s election was fraudulent but does not support violence in response—techniques of democratic deliberation can shift the argument to policy issues and budgetary priorities that may be more tractable, while engendering some mutual empathy between social groups that have never engaged one another in conversation. In my organization’s 2019 experiment in Deliberative Polling, America in One Room, we showed that significant reductions in polarization were possible through such deliberation, and the technology now exists to bring it to scale.
Many Republicans on Capitol Hill will probably reflexively oppose anything President Biden does. But Biden, to unify the large part of the country that can be brought together—that still believes in the American promise of E Pluribus Unum—must use the institutions of our constitutional system to defend it against all enemies, foreign and domestic, while working to bridge our poisonous divides.
Larry Diamond, an editorial board member of American Purpose, is a senior fellow at Stanford University’s Hoover Institution. He coordinates the democracy program of Stanford’s Center on Democracy, Development, and the Rule of Law.
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